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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY BAILEY,

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Case No. 2:12-CV-1954 JCM (CWH)
Plaintiff(s),

ORDER

v.
RICH SUEY, et al.,

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Defendant(s).

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Presently before the court is plaintiff Anthony Bailey’s motion for an order

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scheduling trial. (ECF No. 188). Defendants have filed a response (ECF No. 191), and plaintiff

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has filed a reply (ECF No. 192).

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Defendants argue that scheduling a trial date is inappropriate at this time because the Ninth

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Circuit memorandum in this case vacated this court’s granting of summary judgment as to

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plaintiff’s inadequate ventilation claim and remanded for further proceedings on that claim. See

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(ECF Nos. 178 (instructing that the trial court may receive additional evidence for possible

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summary judgment of this claim), 191).

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Specifically, defendants suggest that additional briefing will allow them to show that

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plaintiff “failed to exhaust his administrative remedies before he filed his inadequate ventilation

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claim.” (ECF No. 191 at 3).

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In reply, plaintiff asserts that he provided proof of exhaustion during the complaint-

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screening process and that the court acknowledged the same. (ECF No. 192). Plaintiff makes

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reference to his October 20, 2016, submission of exhibits suggesting the completion of inmate

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grievance forms. See (ECF Nos. 179, 192).

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James C. Mahan
U.S. District Judge

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In turn, that submission argues that the court’s December 7, 2012, order “condoned” the

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relevant exhaustion efforts. (ECF No. 179 at 2). Upon review, that order did not consider

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exhaustion. See (ECF No. 14). Thus, the court will consider additional evidence as to plaintiff’s

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efforts to administratively exhaust his inadequate ventilation claim.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for an

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order scheduling trial (ECF No. 188) be, and the same hereby is, DENIED.

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IT IS FURTHER ORDERED that defendants shall file a supplemental motion for summary

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judgment—providing new evidence regarding exhaustion—within twenty-one (21) days of this

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order. Plaintiff shall then file a response within twenty-one (21) days of defendants’ submission.

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Finally, defendants shall submit a reply within fourteen (14) days of plaintiff’s response filing

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date.

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DATED April 10, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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