Cheatham v. Haye et al

Filing 56

ORDER Dismissing 51 Plaintiff's Motion for Pretrial Conference and Directing Defendants Haye and Bidwell to File an Answer to 1 Complaint. Defendants Responsive Pleadings due by 3/18/2021. Signed by Magistrate Judge Curtis Ivy, Jr. (MacKay, K)

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LARRY DARNELL
CHEATHAM,

Case No.: 19-10480
Plaintiff,

v.
HEATHER L. HAYE, et al.,
Defendants.
____________________________/

Terrence G. Berg
United States District Judge
Curtis Ivy, Jr.
United States Magistrate Judge

ORDER DISMISSING PLAINTIFF’S MOTION FOR
PRETRIAL CONFERENCE (ECF No. 51) AND DIRECTING
DEFENDANTS HAYE AND BIDWELL TO FILE AN ANSWER
In this prisoner civil rights action, filed on February 15, 2019, Plaintiff Larry
Darnell Cheatham (“Plaintiff”), proceeding pro se, is seeking an award against
defendants Heather L. Haye, DDS, Dental Assistant Sue Bidwell, Joseph Barrett,
Heidi Washington and the Michigan Department of Corrections for damages and
injuries he alleges to have suffered due to the violation of his Eight Amendment
rights. (ECF No. 1). According to Plaintiff, the alleged violation stems from
Defendants Haye’s and Bidwell’s failure to order a mechanical diet (i.e., a soft
food diet) for him following a dental procedure. (Id. at PageID.2-3). Plaintiff
alleges this caused him to be deprived of food for approximately 11 days. (Id. at
PageID.3). Further, Plaintiff alleges this action amounts to cruel and unusual
punishment and violated his right to equal protection of the law. (ECF No. 6).

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On June 17, 2019, the Court issued an order dismissing the claims against
Joseph Barrett, Heidi Washington, and the Michigan Department of Corrections
due to Plaintiff’s failure to state a claim upon which relief could be granted. (ECF
No. 6 at PageID.42). (See id.) On March 24, 2020, the Court issued a report and
recommendation (the “March 24, 2020 Report & Recommendation”)
recommending that Defendant Haye’s motion to dismiss (ECF No. 25) and
Defendant Bidwell’s motion to dismiss and summary judgment (ECF No. 34) be
granted. (ECF No. 41).
On April 8, 2020, Plaintiff filed objections to the March 24, 2020 Report &
Recommendation. (ECF Nos. 42 and 43). On June 26, 2020, the Court issued an
order modifying the March 24, 2020 Report & Recommendation which (i) denied
Defendant Haye’s motion to dismiss and (ii) denied Defendant Bidwell’s request
for summary judgment on the basis of Plaintiff’s failure to properly exhaust his
administrative remedies but granted Defendant Bidwell’s motion as to Plaintiff’s
official-capacity claims. (ECF No. 44). On July 16, 2020, Defendant Haye filed a
motion to correct or modify the Court’s June 26, 2020 order. (ECF No. 47). On
February 4, 2021, the Court denied Defendant Haye’s July 16, 2020 motion. (ECF
No. 55). The remaining defendants in the action are Haye and Bidwell (the
“Defendants”).

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On September 28, 2020, Plaintiff filed a Motion for Pretrial Conference or
Scheduling Conference pursuant to Federal Rules of Civil Procedure 16(1)(b) and
26(f). (ECF No. 51). In his motion, Plaintiff requests that the Court either
schedule a pretrial or scheduling conference to permit the parties to discuss their
respective trial exhibits or order that the case proceed to trial before District Judge
Terrence Berg. (Id. at PageID.296-297). On October 19, 2020, this case was
referred to the undersigned for all pretrial proceedings, including a hearing and
determination of all non-dispositive matters pursuant to 28 U.S.C. § 636. (ECF No.
52).
First, the Court will address Plaintiff’s request that a pretrial or scheduling
conference be calendared. (Id. at PageID.293). In civil cases, Rule 26(f) discovery
conferences must be held prior to the scheduling conference or issuance of a
scheduling order under Federal Rule of Civil Procedure 16. Bell v. Caruso, et al.,
No. 19-13299, 2008 WL 2566754 at *1 (W.D. Mich. June 25, 2008). However,
this type of action—i.e., prisoner civil rights action—is exempt from “both initial
disclosures under Fed. R. Civ. P. 26(a)(1) and the mandatory discovery planning
conference under Fed. R. Civ. P. 26(f)” as Plaintiff is a pro se prisoner in the
custody of the State of Michigan. See id. Thus, the Court DENIES Plaintiff’s
request that a 26(f) discovery planning conference be calendared.

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Plaintiff’s case is also exempt from the requirement that a Fed. R. Civ. P.
16(b) scheduling and planning order be entered unless it is ordered by the judge to
whom the action is assigned. See id.; see also E.D. Mich. L. Civ. R. 16.1(e)(1)
(All actions in which one of the parties appears pro se and is incarcerated are
exempt from the requirements of Fed. R. Civ. P. 16(b)). Further, Defendants have
yet to file their answer and thus issuing a scheduling order would be premature.
As a result, Plaintiff’s motion for a scheduling and planning order pursuant to Fed.
R. Civ. P. 16(b) is HELD IN ABEYANCE pending the filing of Defendants’
respective answers.
As of February 4, 2021 all outstanding dispositive motions filed by
Defendants have been resolved by the Court. (ECF Nos. 44 and 55). Therefore,
Defendants are hereby directed to file their respective answers to Plaintiff’s
complaint by Thursday, March 18, 2021.
Lastly, while less than clear, it appears Plaintiff’s motion at paragraphs 11
and 13 may also seek a bench trial before District Judge Terrence G. Berg. (ECF
No. 51 at PageID. 295, 296). To the extent such is requested, the Court DENIES
Plaintiff’s request as Defendant Bidwell submitted a request for trial by jury per
Federal Rule of Civil Procedure 38(b) on October 10, 2019. (ECF No. 28).
IT IS SO ORDERED.

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Review of this Order is governed by Federal Rule of Civil Procedure 72(a)
and Local Rule 72.1(d).

Date: February 17, 2021

s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served
upon the parties and/or counsel of record on February 17, 2021, by electronic
means and/or ordinary mail.
s/Kristen MacKay
Case Manager
[phone]

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