Gossard v. Warden Madison Correctional Institution et al

Filing 47

ORDER denying 43 Motion to Stay; denying 46 Motion to Appoint Counsel. Signed by Magistrate Judge Terence P. Kemp on 6/6/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Don F. Gossard,

:

Plaintiff,

:
:

v.
Warden, Madison Correctional
Institution, et al.,
Defendants.

Case No. 2:14-cv-1842
JUDGE MICHAEL H. WATSON

:

Magistrate Judge Kemp

:
ORDER

This prisoner civil rights case is before the Court to
resolve a procedural issue raised by Plaintiff Don F. Gossard.
To place the matter in context, the Court will briefly review the
procedural history of the case.
After the Court denied a motion to dismiss and after an
answer was filed, the Court issued a scheduling order on May 11,
2016 (Doc. 34).

It set a discovery cutoff date of January 31,

2017, and a summary judgment motion filing date of February 28,
2017.

These dates have not been extended.
On February 28, 2017, Defendants moved for summary judgment.

Mr. Gossard filed a timely response on March 13, 2017.

He did

not ask for additional time to respond nor suggest that he was
not in a position to file a comprehensive response.

After

Defendants filed a reply, the Court issued a Report and
Recommendation on April 10, 2017, recommending that the case be
dismissed because Mr. Gossard did not properly exhaust his
administrative remedies as required by the PLRA.

See Doc. 42.

Mr. Gossard did not file timely objections to the Report and
Recommendation; his objections were filed on May 5, 2017, which
was after the 14-day period to object had elapsed.

Within that

14-day period, however, he did file a motion to stay the Court’s
decision on the Report and Recommendation.

It is that motion

(Doc. 43), which Defendants oppose, that is now before the Court
for decision.
In his motion, Mr. Gossard seeks to invoke the procedures
set forth in Fed.R.Civ.P. 56(d).

That rules says:

(d) When Facts Are Unavailable to the Nonmovant. If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or
to take discovery; or
(3) issue any other appropriate order.
He argues that he should be permitted to conduct additional
discovery into the factual basis for the motion, including the
institutional logs referred to by Defendants in their
declaration, and should also be allowed to request more
information about what happened to his cellmate after the
incident in question, whether his cellmate was on medication,
and when and how he had been disciplined.
There are at least two significant problems with the motion
to stay.

First, as noted above, the discovery cutoff date in

this case was January 31, 2017.

Such a date set in a scheduling

order issued under Fed.R.Civ.P. 16(b) can be extended only upon
a showing of good cause, and that showing requires the moving
party to demonstrate that, despite the exercise of due diligence
during the discovery period, the discovery at issue could not
have been obtained.

See, e.g., Commerce Benefits Group v.

McKesson Corp., 326 Fed. Appx. 369 (6th Cir. May 20, 2009);
Deghand v. Wal-Mart Stores, 904 F.Supp. 1218, 1221 (D. Kan.
1995); see also Cromwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1027 (9th Cir. 2006).
showing.

Mr. Gossard has not made such a

There is no reason he could not have asked for this
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information at any time between May of 2016 and January of 2017.
Second, a Rule 56(d) motion ordinarily precedes a ruling on
the summary judgment motion, and is made in lieu of the filing
of a memorandum in opposition.

As the Court of Appeals for the

First Circuit explained in Nieves-Romero v. United States, 715
F.3d 375, 381 (1st Cir. 2013), “[a] party cannot have two bites
at the cherry: he ordinarily cannot oppose a summary judgment
motion on the merits and, after his opposition is rejected, try
to save the day by belatedly invoking Rule 56(d).”

But that is

what Mr. Gossard has attempted to do here, and he may not obtain
such relief.
It is clear that the motion to stay is based on a request
for discovery which the Court cannot grant under the principles
which apply to both Fed.R.Civ.P. 16(b) and Fed.R.Civ.P. 56(d).
Consequently, the Court denies the motion to stay (Doc. 43).
Additionally, given the pendency of the Report and
Recommendation, the Court has concluded that the case likely
lacks merit, and for that reason, the pending motion for
appointment of counsel (Doc. 46) is also denied.
MOTION FOR RECONSIDERATION
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
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reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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