Grizzle v. San Diego, County of et al

Filing 150

ORDER (1) Denying Defendants' Motion for Bifurcation, Expedited Evidentiary Hearing, and Entry of Judgment; and (2) Denying as Moot Defendants' Motion to Vacate or Continue the Pretrial Deadlines [Docs. No. 144 , 145 ]. The Court sua sponte grants Defendants fourteen (14) calendar days to file supplemental briefing, if any, should Defendants wish to address exhaustion. Signed by Magistrate Judge Ruth Bermudez Montenegro on 1/10/2022. (tcf)

Case 3:17-cv-00813-JLS-RBM Document 150 Filed 01/10/22 PageID.1488 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELLIOT SCOTT GRIZZLE,

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Case No.: 17-cv-00813-JLS-RBM
Plaintiff,

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V.

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ORDER:

COUNTY OF SAN DIEGO, et al.,

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(l)DENYING DEFENDANTS'
MOTION FOR BIFURCATION,
EXPEDITED EVIDENTIARY
HEARING, AND.ENTRY OF
JUDGMENT;·AND

Defendants.

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(2)DENYING AS MOOT
DEFENDANTS' MOTION TO
VACATE OR CONTINUE THE
PRETRIAL DEADLINES

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[Docs. 144, 145]

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On December 13, 2021, Defendants, County of San Diego, William Gore, Lena

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Lovelace, and Aaron Boorman (collectively, "Defendants") filed a motion for bifurcation,

26 . expedited evidentiary hearing, and entry of judgment on the affirmative defense of failure
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to exhaust("Motion for Bifurcation"). (Doc. 144.) Defendants seek to bifurcate trial by

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holding an early evidentiary hearing on the issue of exhaustion claiming bifurcation "is
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appropriate to expedite and economize trial." (Doc. 144-1 at 2.) Additionally, Defendants

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request the Court to enter judgment in their favor at the conclusion of the requested

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expedited evidentiary hearing. (Id. at 7.)

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Following Defendants' Motion for Bifurcation, Defendants filed an ex parte motion

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to vacate or continue the pretrial deadlines ("Motion to Vacate") pending the outc·ome of

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Defendants' Motion for Bifurcation. (Doc. 145.) Defendants request the Court to vacate

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all remaining pretrial dates ih the fourth amended scheduling order (Doc. 142) or in the

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alternative, continue all dates and deadlines by 90 to 120 days. (Doc. 145 at 2.) Defendants

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claim "it would be a waste of resources for the parties to complete the pretrial work ... if

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the case is disposed of at the preliminary hearing requested in the Defendants' Motion for

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Bifurcation .... " (Id. at 2.)

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For the reasons discussed below, Defendants' Motion for . Bifurcation is DENIED
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and Defendants' Motion to Vacate is DENIED AS MOOT.

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A. .

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"Exhaustion should be decided, if feasible, before reaching the merits of a prisoner's

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claim." Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). The Ninth Circuit has held

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th1;1t "the appropriate procedural device for pretrial determination of whether administrative

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remedies have. been exhausted under the PLRA . . . is a motion for summary judgment

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under Rule 56." Id. at 1168.

Motion for Bifurcation

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Defendants claim a preliminary evidentiary hearing ~s appropriate in the instant case

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as "Plaintiff intentionally created factual issues to avoid summary judgment" and "testified

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in a manner designed to avoid summary judgment." (Doc. 144~1 at 5.) However,

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Defendants recently filed a motion for summary judgment ("MSJ") (Doc. 148) on January

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5, 2022, but they did not address exhaustion in their MSJ briefing. Therefore, the Court

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sua sponte grants Defendants fourteen (14) calendar days to file supplemental briefing,

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if any, should Defendants wish to address exhaustion. An order setting a briefing schedule

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on the supplemental briefing, if any, response to the MSJ, and reply is forthcoming.

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Because Defendants may raise the issue of exhaustion in their summary judgment motion,
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For the

foregoing reasons, Defendants' request for bifurcation, expedited evidentiary hearing, and
entry of judgment on the affirmative defense of exhaustion is DENIED.

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B.

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A scheduling order may be modified only upon a showing of good cause and with

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the judge's consent. FED. R. CIV. P. 16(b)(4); see, e.g., Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992) (stating, "the focus of [the good cause] inquiry is

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upon the moving party's reasons for seeking modification.").

Motion to Vacate

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As to the request to vacate or otherwise continue the remaining pretrial dates pending

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the outcome of Defendants' request for bifurcation of trial, evidentiary hearing, and entry

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of judgment, the Motion to Vacate is DENIED AS MOOT.

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IT IS SO ORDERED.
Dated: January 10, 2022

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6N:ru..frH B~EZMONTENEGRO
UNITED STATES MAGISTRATE JUDGE

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