Webb v. Armstrong et al
ORDER denying without prejudice 124 & 128 Motions for Summary Judgment; granting 164 Motion to Modify Scheduling Order; denying without prejudice 165 Motion for Hearing. The parties will confer on a briefing schedule and submit a proposed schedule for consideration by the Court on or before 10/16/2017. Please see attached Ruling & Order for details. Signed by Judge Robert N. Chatigny on 9/30/2017. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Case No. 3:11-cv-1557(RNC)
JOHN ARMSTRONG, ET AL.
RULING AND ORDER
Plaintiff, an inmate at Northern Correctional Institution,
brings this action under 42 U.S.C. § 1983 against current or
former employees of the Department of Correction seeking damages
for excessive force, deliberate indifference to a serious medical
need, retaliation and invasion of privacy.
Pending are cross-motions for partial summary judgment.
Since these motions were filed, defendants have moved to modify
the scheduling order to permit them to file a supplemental motion
for summary judgment based on plaintiff’s failure to exhaust
They have also filed a motion for an
evidentiary hearing to determine whether his failure to exhaust
Plaintiff opposes both motions on the grounds
that defendants have not acted with due diligence and further
delay will cause undue prejudice to him.
After considering the parties’ submissions, I conclude that
defendants should be granted leave to file the proposed
supplemental motion for summary judgment.
They have pleaded the
defense of failure to exhaust, the defense has not been waived,
they indicate that the defense applies to all the claims, their
failure to raise the defense as a ground for summary judgment at
an earlier stage is excusable, and the delay likely to result
from further briefing will not cause undue prejudice to the
Whether a hearing is necessary can be determined
after the briefing is completed.
Accordingly, the motion to modify the scheduling order (ECF
164) is granted and the motion for a hearing (ECF 165) is denied
The pending cross-motions (ECF 124, 128) are
denied without prejudice.
Defendants will file a new summary
judgment motion that incorporates the grounds asserted in the
prior motion (ECF 124) and adds exhaustion as a further ground
for summary judgment.
Plaintiff will file an opposition that
addresses all the grounds presented in the new motion.
plaintiff wishes to do so, he may reinstate his motion for
partial summary judgment (ECF 124), in which case defendants will
file an appropriate response that takes account of their defense
based on the alleged failure to exhaust.
The parties will confer
on a briefing schedule and submit a proposed schedule for
consideration by the Court on or before October 16, 2017.
So ordered this 30th day of September 2016.
Robert N. Chatigny
United States District Judge
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