Morris v. Barra et al

Filing 124

ORDER denying Plaintiff's 120 Ex Parte Motion for the Court to Delay Ruling Until Respondent Complies with Request for Production of Documents. Signed by Magistrate Judge Bernard G. Skomal on 2/23/12. (All non-registered users served via U.S. Mail Service)(cge)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

CONDALEE MORRIS,

12

17
18
19
20
21
22
23
24

ORDER DENYING PLAINTIFF’S EX
PARTE MOTION TO DELAY RULING

v.
M BARRA, Program Sergeant; et al.,
Defendants.

15
16

10-CV-2642-AJB (BGS)

Plaintiff,

13
14

Civil No.

On August 12, 2011, Plaintiff Condalee Morris, a state prisoner proceeding pro se and in
forma pauperis (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. §1983, filed a second
amended complaint. (Doc. No. 39.) On August 29, 2011, Defendants M Barra, G J Janda, L Mills
and D White filed a motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12(b)
for failure to exhaust administrative remedies as to claims against Mills and Barra and for failure
to state a claim as to claims against White and Janda. (Doc. No. 43.) A hearing date of October 11,
2011 was set for Defendants’ motion, with no oral argument unless ordered by the Court. (Id.) On
September 16, 2011, Plaintiff filed a motion requesting a continuance pursuant to Fed.R.Civ.P.
56(d)1. (Doc. No. 48.) Plaintiff then filed a response in opposition to Defendants’ motion to dismiss

25
26
27
28

1

The Court notes that effective December 1, 2010, Fed. R. Civ. Pro. 56(d) is the subdivision of
Rule 56 that concerns when facts are unavailable to the nonmovant. Plaintiff filed his motion to
continue under Fed.R.Civ.P. 56(f), which was the effective subdivision that concerned the same until
December 1, 2010. Therefore, the Court construes Plaintiff’s motion as one under 56(d) and not one
under the current version of 56(f), which concerns a court’s ability to enter judgment independent of a
motion for summary judgment.
1

10cv2642-AJB

1

on September 19, 2011. (Doc. No. 49.) The Court denied Plaintiff’s motion for a continuance on

2

September 22, 2011. (Doc. No. 54.) Defendants filed a reply in support of their motion on

3

September 29, 2011. (Doc. No. 55.) On October 5, 2011, Plaintiff filed another motion requesting

4

a continuance, which was denied by the Court on February 8, 2012. (Doc. Nos. 59 & 116.)

5

After Defendants’ reply to the motion to dismiss, Plaintiff submitted additional documents

6

supporting his opposition to the Defendants’ motion to dismiss. (See Doc. Nos. 77, 81, 83, & 85.)

7

In light of Plaintiff’s additional submissions, the Court permitted Defendants to file a supplemental

8

reply. (Doc. No. 92.) Defendants filed a supplemental reply on December 12, 2011. (Doc. No. 96.)

9

Plaintiff filed an additional sur-reply on December 21, 2011. (Doc. No. 96.)

10

On February 9, 2012, the Court filed a Report and Recommendation on Defendants’ motion

11

to dismiss, recommending the motion be granted in part and denied in part. (Doc. No. 119). On

12

February 13, 2012, Plaintiff filed an ex parte motion for the Court to delay ruling on Defendants’

13

motion to dismiss until Defendants comply with a request for production of documents served

14

December 7, 2011. (Doc. No. 120.) On February 15, 2012, Defendants filed a response in

15

opposition. (Doc. No. 121.)

16

In his ex parte motion, Plaintiff seeks a 90 day delay of the Court’s ruling until Defendants

17

comply with Plaintiff’s pending request for production of documents so that Defendants may “obtain

18

all file materials, evaluate what request should be prepared, and have [Defendants] to get up to speed

19

on the case.” (Doc. No. 120 at 3.) Defendants oppose any delay, arguing Plaintiff has not specified

20

how the requested documents, which request Defendants assert they received on February 1, 2012,

21

could possibly affect the Court’s ruling. (Doc. No. 121.) Additionally, Defendants delineate all

22

of the discovery requests to which they have responded, including several requests for documents

23

relating to exhaustion of administrative remedies. (Id.)

24

The Court, for lack of good cause shown, denies Plaintiff’s ex parte motion to delay ruling

25

on Defendants’ motion to dismiss. Plaintiff has not specified what documents he is waiting to

26

receive or how any of these documents affect the Court’s ruling on Defendants’ motion to dismiss.

27

As the Court previously noted in denying Plaintiff’s motions to compel discovery, “Plaintiff has

28

received most of the discovery he seeks to compel, including the documents relevant to exhaustion
2

10cv2642-AJB

1

of his claims against Mills and Barra. It is not clear from his litany of filings what exactly

2

Defendants have failed to produce, what efforts Plaintiff made to informally resolve the dispute, and

3

how the specific discovery he has not received is relevant. (Doc. No. 116 at 4.) In the same order,

4

the Court also found in denying Plaintiff’s motion for a continuance of Defendants’ motion to

5

dismiss that Plaintiff had amble opportunity to present his argument and evidence to the Court, as

6

he had submitted an opposition to the motion to dismiss containing numerous exhibits totaling over

7

100 pages, several supplemental documents, a sur-reply, and a supplemental sur-reply. (Id. at 5.)

8

Accordingly, the Court does not find good cause to delay a ruling on Defendants’ motion to dismiss.

9

IT IS SO ORDERED.

10
DATED: February 23, 2012
11
12

BERNARD G. SKOMAL
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

10cv2642-AJB