Bailey et al v. Suey et al

Filing 193

ORDER Denying Plaintiff Anthony Bailey's 188 Motion for an Order Scheduling Trial. Defendants shall file a supplemental motion for summary judgment providing new evidence regarding exhaustion within 21 days of this order (see Order for additional deadlines). Signed by Judge James C. Mahan on 4/10/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 ANTHONY BAILEY, 8 9 10 Case No. 2:12-CV-1954 JCM (CWH) Plaintiff(s), ORDER v. RICH SUEY, et al., 11 Defendant(s). 12 13 Presently before the court is plaintiff Anthony Bailey’s motion for an order 14 scheduling trial. (ECF No. 188). Defendants have filed a response (ECF No. 191), and plaintiff 15 has filed a reply (ECF No. 192). 16 Defendants argue that scheduling a trial date is inappropriate at this time because the Ninth 17 Circuit memorandum in this case vacated this court’s granting of summary judgment as to 18 plaintiff’s inadequate ventilation claim and remanded for further proceedings on that claim. See 19 (ECF Nos. 178 (instructing that the trial court may receive additional evidence for possible 20 summary judgment of this claim), 191). 21 Specifically, defendants suggest that additional briefing will allow them to show that 22 plaintiff “failed to exhaust his administrative remedies before he filed his inadequate ventilation 23 claim.” (ECF No. 191 at 3). 24 In reply, plaintiff asserts that he provided proof of exhaustion during the complaint- 25 screening process and that the court acknowledged the same. (ECF No. 192). Plaintiff makes 26 reference to his October 20, 2016, submission of exhibits suggesting the completion of inmate 27 grievance forms. See (ECF Nos. 179, 192). 28 James C. Mahan U.S. District Judge 1 In turn, that submission argues that the court’s December 7, 2012, order “condoned” the 2 relevant exhaustion efforts. (ECF No. 179 at 2). Upon review, that order did not consider 3 exhaustion. See (ECF No. 14). Thus, the court will consider additional evidence as to plaintiff’s 4 efforts to administratively exhaust his inadequate ventilation claim. 5 Accordingly, 6 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for an 7 order scheduling trial (ECF No. 188) be, and the same hereby is, DENIED. 8 IT IS FURTHER ORDERED that defendants shall file a supplemental motion for summary 9 judgment—providing new evidence regarding exhaustion—within twenty-one (21) days of this 10 order. Plaintiff shall then file a response within twenty-one (21) days of defendants’ submission. 11 Finally, defendants shall submit a reply within fourteen (14) days of plaintiff’s response filing 12 date. 13 14 15 DATED April 10, 2017. __________________________________________ UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -2-

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