Abney v. Basial et al

Filing 57

MEMORANDUM OPINION and ORDER - 1. The dfts motion for a stay of discovery (Doc. 48 ) is GRANTED in part. Discovery in this case shall be stayed. 2. The pltfs omnibus motion for discovery relief and for leave to take broad discovery pursuant to Rule 56(d) in order to respond to the dfts motion for summary judgment (Doc. 53 ) is DENIED. 3. The pltf shall file a substantive response to the dfts motion for summary judgment on or before Friday, October 27, 2017. The dfts shall be permitted to fil e a reply brief in further support of their motion on or before Friday, November 10, 2017. 4. The pltfs unopposed motion for an extension of time to complete discovery and to file additional dispositive motions (Doc. 56 ) is GRANTED and the case-ma nagement Order of February 17, 2017, is hereby amended as follows: Close of Fact Discovery: February 28, 2018. Reports of Experts : March 14, 2018. Response Reports to Expert Reports: April 16, 2018. Dispositive Motions and SupportingBriefs Due: May 2, 2018. Consent to Proceed Before United States Magistrate Judge: May 2, 2018. Signed by Magistrate Judge Martin C. Carlson on October 6, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE ABNEY,
Plaintiff
v.
LISA W. BASIAL, et al.,
Defendants

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Civil No. 1:16-CV-350
(Judge Kane)
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION
In this lawsuit, Clarence Abney, an inmate in the custody of the

Pennsylvania Department of Corrections, brings claims against a number of
correctional officers and a former Senior Deputy Attorney General in the
Pennsylvania Office of Attorney General, alleging that the defendants individually
and collectively acted to violate his constitutional rights out of retaliation for
another lawsuit that Abney filed.1 The litigation has been, in a word, contentious,
but with little movement with respect to discovery or litigation on the merits.

1

That lawsuit, captioned Clarence Abney v. Younker, et al., No. 1:13-cv-1418
(M.D. Pa.) (YK) (MCC) (“Abney I”), remains pending. It alleges claims against a
number of DOC staff who Abney claims beat him almost to death in June 2012 at
the State Correctional Institution at Huntingdon. The instant lawsuit arises out of,
and relates to Abney I, in that in this case Abney alleges that corrections officers,

The instant case in particular has been notably marked by halting and
irregular discovery practice, including a failure on the part of the defendants to
communicate openly with plaintiff’s counsel concerning their intention to resist
discovery and file various motions, leading to the belated and surprise cancellation
of depositions that had been scheduled for some time. The breakdown during fact
discovery was quickly compounded by subsequent motions practice, including the
defendants filing a motion for summary judgment (Doc. 44), and a motion to stay
discovery pending a ruling on that motion (Doc. 48). The defendants’ motion for
summary judgment rests in large part on the contention that Abney failed
administratively to exhaust most of his claims in this action prior to filing suit,
thereby causing his claims to be defaulted under the Prison Litigation Reform Act,
42 U.S.C. § 1997e. In addition, the defendants argue that Abney’s claims are timebarred for having been brought more than two years after the incidents occurred.
These motions, in turn, have impelled the plaintiff to resort to his own
motions practice rather than to respond to the motion for summary judgment in the
customary manner that would be ordinarily followed under Rule 56(c) and Local
Rules 7.6 and 56.1. Specifically, the plaintiff filed an omnibus motion seeking
entry of an Order directing the defendants to respond to outstanding discovery and

aided by their former counsel, acted in a number of ways to retaliate against,
harass, and intimidate Abney and other prisoners for having made the claims
alleged in Abney I.
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to appear for depositions; denying the requested stay of discovery; allowing the
plaintiff time to take sweeping discovery into at least 30 separate issues before
responding to the defendants’ summary judgment motion; and sanctioning the
defendants for their asserted misconduct during discovery. In a rare moment of
agreement, the parties have also filed a motion seeking an extension of the
deadlines to complete discovery and to file dispositive motions in this action.
(Doc. 56.)
Upon consideration of the parties’ motions and related filings, the Court
concludes that although the defendants’ refusal to participate in scheduled
discovery was irregular and regrettable, their motion for summary judgment
presents legal and factual arguments that are potentially dispositive of a number of
claims, and compel a response from the plaintiff because as to many of the
arguments set forth in the motion for summary judgment, the plaintiff has not
persuasively demonstrated that he requires the kind of broad and searching
discovery that he suggests is needed in order to respond.

The defendants’

arguments are essentially legal in nature, and to the extent there are factual
disputes that bear upon them, these are facts that should be within the plaintiff’s
knowledge, and thus there is no apparent reason why he cannot respond to them
and offer supporting affidavits highlighting any specific existing factual disputes.
His claim that he is entirely unable to formulate a response to the motion is
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therefore unpersuasive, and to the extent that there may be discrete issues raised in
the motion that may warrant limited and targeted discovery, he would be capable
of making a narrower and more specific argument as part of his response to the
motion as filed. If those arguments are compelling, Rule 56(d) would authorize the
Court either to deny the motion as to those claims, defer consideration of the
motion as to those claims, or issue other orders as may be appropriate.
At the same time, the Court also disagrees with the defendants that discovery
in this case should come to a standstill pending a ruling on the motion for summary
judgment. As part of balancing the parties’ respective interests and hardships, and
determining whether a stay is warranted, one factor the Court will consider is the
likelihood that the pending dispositive motions is likely to prevail.

Without

prejudging that motion, at least some of the arguments the defendants have made
would seem somewhat questionable, particularly the assertion that Abney’s claims
against counsel in Abney I were subject to the exhaustion requirements prescribed
by the PLRA, and the blanket argument that Abney’s claims are time-barred,
particularly where Abney had industriously endeavored to include these claims as
part of a supplemental complaint in Abney I, only to have the Court later direct that
these claims be filed as a separate civil action. The Court’s initial questions
regarding these issues, the defendants’ irregular approach to cancelling their
depositions and other discovery responses with virtually no notice prior to filing
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their motion for summary judgment, and the risk of prejudice to the plaintiff causes
the Court to find that an open-ended stay of all discovery following briefing on the
summary judgment motion is not justified.
Accordingly, for the reasons discussed briefly below, the defendants’ motion
to stay discovery will be granted narrowly, and discovery will be stayed
temporarily, but only while the defendants’ motion for summary judgment is fully
briefed. The plaintiff’s omnibus motion for a range of discovery-related relief will
be denied, but full merits discovery may commence within the next 40 days and
the plaintiff’s unopposed motion to enlarge the discovery deadlines in this case
will be granted.
Because the Court disagrees with the plaintiff that he requires broad
discovery into more than two dozen issues to respond to legal arguments
concerning whether he exhausted administrative remedies prior to filing suit, or
whether his claims may be time-barred, the plaintiff will be directed to file a
substantive response to the merits of defendants’ motion for summary judgment,
and the defendants will be afforded time to file a reply brief in response. To the
extent that the plaintiff finds that a response to some discrete aspect of the
defendants’ motion is not possible because he has not taken discovery, it is
expected that he will make such argument narrowly and specifically, supported by
affidavit or declaration, as he has thus far not persuaded the Court that he requires
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the kind of sweeping merits discovery he sought in order to respond to the nonmerits arguments raised in the defendants’ motion.

Following conclusion of

briefing on the motion for summary judgment, the parties will be directed to
resume fact discovery.2
II.

DISCUSSION
A.

The Plaintiff’s Argument that He Requires Merits Discovery to
Respond to the Defendants’ Non-Merits Arguments in the
Pending Motion for Summary Judgment Will Be Denied.

When a party opposing summary judgment “believes that s/he needs
additional time for discovery, [Rule 56(d)] specifies the procedure to be followed.”
Pa. Dep’t of Public Welfare v. Sebelius, 674 F.3d 139, 157 (3d Cir. 2012) (quoting
Dowling v. City of Phila., 855 F.2d 136, 139 (3d Cir. 1988)). The rule provides
specifically as follows:
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.
Fed. R. Civ. P. 56(d). The rule works in concert with the well-established principle
that courts are “obliged to give a party opposing summary judgment an adequate

Of course, if the parties find themselves having disagreements regarding the
proper scope of discovery, or otherwise become embroiled in discovery disputes,
the Court is prepared to work with the parties to resolve them.
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opportunity to obtain discovery.” Dowling, 855 F.2d at 139. This is so because
the process that is envisioned by Rule 56 summary judgment practice “presupposes
the existence of an adequate record.” Doe v. Abington Friends School, 480 F.3d
252, 257 (3d Cir. 2007). In one of its seminal trilogy of decisions defining modern
summary judgment practice, the Supreme Court instructed that “[a]ny potential
problem with . . . premature [summary judgment] motions can be adequately dealt
with under [Rule 56(d)].” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).
Accordingly, if the non-moving party believes that he requires additional discovery
in order to respond to a motion for summary judgment, the “proper course is to file
a motion pursuant to [Rule 56(f)].” Abington Friends, 480 F.3d at 257.
Where there are discovery requests outstanding or where relevant facts are
under the control of the moving party, “[d]istrict courts usually grant properly filed
[Rule 56(d)] motions as a matter of course.” Id. (quoting St. Surin v. Virgin
Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994)). However, this is the
practice followed in cases where the non-movant has made a showing that it
requires discovery that was expected to provide relevant evidence necessary for the
non-movant to oppose the motion effectively; where the non-moving party has
claimed to need fact discovery, but that discovery would not be probative of the
moving party’s summary judgment argument, the motion may be denied.
Dowling, 855 F.2d at 140.
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In this case, the defendants have filed a motion seeking partial summary
judgment on Abney’s claims in this case. The defendants argue that Abney, who
was assisted at the time by counsel, failed to exhaust most of his claims through
the Department of Corrections’ grievance procedures with which Abney and his
lawyer were familiar. The defendants have provided the Court with copies of
grievances that Abney filed following the incidents that he claims occurred and
constituted retaliation or otherwise violated his constitutional rights.

The

defendants then make a number of arguments as to how the grievances were
deficient, in that they failed to identify the defendants named in this lawsuit, or
concerned matters other than those alleged in this case. Citing to familiar case law,
the defendants then argue that Abney’s failure to exhaust his administrative
remedies prior to filing suit has caused most of the claims brought in this case to be
procedurally defaulted.
The plaintiff and his counsel argue that he should be excused from filing
grievances against some defendants because he was not aware of their involvement
within the time when he would have been required to file a grievance. Rather than
respond to the defendants’ argument regarding the sufficiency of the grievances
that he did file, the plaintiff has argued that he should be permitted instead to take
broad discovery into at least 30 separate areas, endeavoring to argue that this
discovery is not relevant only to the merits of his claims, but also to whether those
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claims were administratively exhausted or timely filed. The plaintiff’s argument is
not persuasive, and counsel’s affidavit does not adequately explain why the
discovery sought is needed to respond to these threshold legal and factual issues.
Specifically, to the extent that the plaintiff has an argument to make
regarding what he or his lawyer knew at the time they filed the grievances that
were actually filed, it is not at all clear how the plaintiff needs to take discovery
from the defendants in order to make this argument. What Mr. Abney or his
attorney knew at the time are matters that are within their knowledge, and thus
they are exclusively capable of offering evidence in the form of affidavits or
declarations about what they knew, or about their mental impressions, to the extent
it is relevant to contesting the arguments regarding exhaustion or timeliness.
The plaintiff argues that he should be permitted to obtain deposition
testimony and documents that relate to the defendants’ videoconferencing
equipment, DOC policies regarding the transfer of inmates, and information
concerning the defendants’ compliance with these policies. The plaintiff also
claims to need discovery into Defendant Basial’s personnel file, as well as the
personnel records for other named defendants, in order effectively to respond to the
pending motion. Again, the Court disagrees that any of this discovery is necessary
to allow the plaintiff to respond to straightforward legal arguments regarding
whether his claims were properly exhausted – or whether they were required to be
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– and whether they were timely filed within the applicable two-year statute of
limitations. We fail to appreciate how the defendants’ policies, files, or testimony
on any of these subjects bears on the defendants’ exhaustion and timeliness
arguments.

The plaintiff and his counsel should be capable of responding

specifically to these arguments, and to offer affidavits or declarations regarding
what they knew and when, whether claims were exhausted or whether exhaustion
was even required for some of the claims, and on issues concerning the timeliness
of the claims, including whatever impact the plaintiff’s efforts to bring these claims
as supplemental claims in Abney I may have on their timeliness in this suit.
There is one narrow area where discovery the plaintiff seeks is relevant, and
the defendants have agreed. That discovery relates to a potential dispute regarding
different versions of the DOC’s DC-ADM 804 policy that governs the inmate
grievance process which may have existed during the relevant time period. The
defendants have agreed that the plaintiff should be entitled to copies of the DCADM 804 as it existed during the relevant period of time during which Abney may
have been required to grieve some or all of his claims. The defendants have agreed
that if the plaintiff’s counsel furnishes them with copies of the policies that she was
provided by other DOC counsel, they will inspect them and, if appropriate,
stipulate that they are the same policies that were in effect during the time period
relevant to the claims in this case. The Court will require that the parties meet and
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confer regarding this single discovery issue, and that defendants will provide
whatever stipulations or limited discovery production may be necessary on this
single issue.
The Court appreciates that the plaintiff would prefer not to address a
preliminary motion for summary judgment that challenges his claims as
procedurally defaulted or for having been filed past the two-year statute of
limitations, particularly where he has been frustrated by the defendants’ lastminute refusal to appear for depositions or otherwise furnish him with discovery,
but he cannot resist this motion solely on grounds that he is in need of merits
discovery in order to respond to what are non-merits issues.
Accordingly, because we do not agree that the plaintiff needs or is entitled to
the sweeping discovery that he seeks in order to respond substantively to the
defendants’ motion, his omnibus motion will be denied to the extent it seeks relief
under Rule 56(d). Instead, the plaintiff will be directed to submit a response that
specifically addresses the non-merits arguments that the defendants have asserted
so that the defendants’ motion may be considered and ruled upon. We will,
however, set a prompt timetable for commencing full merits discovery.
B.

Plaintiff’s Request for Sanctions Will Be Denied.

The remainder of the plaintiff’s omnibus motion requests that the Court
sanction the defendants by striking their affirmative defenses, issuing a contempt
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citation, or otherwise imposing penalties on them for their asserted misconduct
during the discovery period and in refusing to fulfill their obligations under the
rules.
To the extent the plaintiff asks the Court to strike the defendants’ affirmative
defenses, including the defenses that have been raised in the motion for summary
judgment, that request will be denied. Motions to strike are, as a general rule,
disfavored. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989).
Rule 12(f) grants the Court substantial discretion to “strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). A motion to strike a defense pursuant to this Rule
will not be granted “unless the insufficiency of the defense is clearly apparent.”
Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir. 1986).

Courts

generally avoid evaluating the merits of a defense where the factual background of
the case is undeveloped. Id. In this case, the merits of the affirmative defenses
have been placed squarely before the Court by the defendants’ motion for
summary judgment, and cannot be said to be frivolous or baseless. Whether the
defenses will warrant any relief on the motion remains to be seen, but there is no
basis to strike the defenses under Rule 12.
What the plaintiff is more specifically seeking is a Court order striking the
defenses as a sanction for the defendants’ alleged violation of their discovery
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obligations or perhaps other violations of the Federal Rules of Civil Procedure.
Rule 11 generally protects against a defendant asserting frivolous defenses. See
Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986); Cinema Serv.
Corp. v. Edbee Corp., 774 F.2d 584, 586 (3d Cir. 1985). The Court does not find
that the plaintiff has shown that the defenses are frivolous, and thus there is no
basis to strike the defenses pursuant to Rule 11.
Courts also have the discretion to strike an affirmative defense for discovery
violations, but this is considered to be “extreme and is generally not the first course
of action a courts takes to sanction a party.”

Amalgamated Bank of N.Y. v.

Pennsylvania Companies, 1995 WL 71324, at *2 (E.D. Pa. Feb. 21, 1995). The
Court does not find any basis to impose such an extraordinary sanction at this time.
To the contrary, the Court has found that these affirmative defenses have been
properly asserted, and properly joined in the defendants’ motion for summary
judgment, which the Court is prepared to address after the parties have completed
briefing on the motion.
The plaintiff has also suggested that the Court should sanction the
defendants pursuant to its authority under Rules 37 and 45 of the Federal Rules of
Civil Procedure, apparently because nonparties refused to appear for depositions
that had been scheduled.

The Court finds it unnecessary, premature and

inappropriate to consider at this juncture whether the defendants may properly be
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sanctioned for the failure of nonparties to appear for the depositions that the
plaintiff had scheduled.

In the event the plaintiff believes that sanctions for

discovery abuses are warranted following adjudication of the pending motion for
summary judgment and, if necessary, the merits of the plaintiff’s claims, he may
renew his motion at that time. However, the Court will not further delay and
disrupt this litigation by allowing claims for sanctions and related relief to get in
the way of the litigation of the pending motion and, if necessary, the merits of the
plaintiff’s claims.
C.

The Defendants’ Motion for a Stay of Merits Discovery Will Be
Narrowly Granted in Part But Only During the Pendency of
Briefing on the Summary Judgment Motion, After Which Time
Discovery Will Be Open.

Despite the defendants having abruptly, and with almost no notice,
announced that they would not engage in the discovery that they had been
negotiating with the plaintiff; and without having previously sought a protective
order or other relief from the Court, the defendants have moved to stay discovery
on the grounds that their pending motion for summary judgment may result in the
dismissal of many claims and parties, and substantially narrow the case. The
plaintiff opposes this motion.
Rule 26(c) of the Federal Rules of Civil Procedure permits courts to stay
discovery on a showing of good cause. See, e.g., Gerald Chamales Corp. v. Oki
Data Americas, Inc., 247 F.R.D. 453, 454 (D.N.J. 2007) (“A protective order
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pursuant to Fed. R. Civ. P. 26(c) may only be issued if ‘good cause’ is shown.”);
see also Fed. R. Civ. P. 26(c). The burden is on the party seeking to stay discovery
to demonstrate that there exists good cause to do so. Perelman v. Perelman, No.
10-5622, 2011 WL 3330376, at *1 (E.D. Pa. Aug. 3, 2011) (“The burden is on the
party seeking the stay [of discovery] to show ‘good cause.’”) (citations omitted).
District courts, in turn, have broad discretion to issue orders and other
decisions governing the conduct of discovery and to control their dockets. See,
e.g., In re Fine Paper Antitrust Litig., 685 F.2d 810, 818 (3d Cir. 1982); see also
Coyle v. Hornell Brewing Co., No. 08-2797, 2009 WL 1652399, at *3 (D.N.J. June
9, 2009) (“In discovery disputes, the Magistrate Judges have broad discretion to
manage their docket and to decide discovery issues, including whether to stay
discovery pending a decision on a dispositive motion.”) (citations omitted).
However, “[m]otions to stay discovery are not favored because when discovery is
delayed or prolonged it can create case management problems which impede the
court’s responsibility to expedite discovery and cause unnecessary litigation
expenses and problems.” Coyle, 2009 WL 1652399, at *3 (internal citations and
quotation marks omitted).
The Supreme Court long ago set forth the standard that should be followed
for a stay of proceedings, instructing that the moving party “must make out a clear
case of hardship or inequity in being required to go forward, if there is even a fair
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possibility that the stay . . . will work damage to [someone] else.” Landis v. N. Am.
Co., 299 U.S. 248, 255 (1936). Making this determination requires the court to
exercise judgment, weigh the parties’ competing interests, and balance the
hardships between the parties going forward. Id. at 254-55; see also Gold v.
Johns-Manville Sales Corp., 723 F.2d 1068, 1076 (3d Cir. 1983) (balancing
potential hardship with respect to both parties).
In the exercise of this balancing function, courts weigh an assortment of
factors when considering a request for a stay of discovery, including (1) whether a
stay would unduly prejudice or present a tactical disadvantage to the non-moving
party, Cima Labs, Inc. v. Actavis Group HF, Nos. 07-893, 06-1970, 06-1999, 2007
WL 1672229, at *8 (D.N.J. June 7, 2007); (2) whether denial of the stay would
create a “clear case of hardship or inequity” for the moving party, Gold, 723 F.2d
at 1075-76; (3) whether a stay would simplify the issues and trial in the case, Cima
Labs, 2007 WL 1672229, at *8; and (4) whether discovery has been completed and
a trial date set, id.
In considering prejudice, the party seeking the stay must show good cause
and specifically demonstrate the need for stay to guard against harm. “Broad
allegations of harm, unsubstantiated by specific examples or articulated reasoning”
will not suffice. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.
1986). Notably, if a dispositive motion is pending – as is the case here – courts
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will consider whether the pending motion “appear[s] to have substantial grounds
or, stated another way, do[es] not appear to be without foundation in law.” Victor
v. Huber, No. 12-282, 2012 WL 2564841, at *2 (M.D. Pa. July 2, 2012) (internal
quotations and citations omitted). In this regard, the court may consider whether a
stay is likely to simplify the issues to be tried, Cima Labs, 2007 WL 1672229, at
*8. However, “the mere filing of a dispositive motion does not constitute ‘good
cause’ for the issuance of a discovery stay.” Gerald Chamales, 247 F.R.D. at 454.
In this case, the defendants have represented that they believe their pending
motion is likely to be meritorious on at least a substantial number of claims, and
thus likely to narrow the issues that may require further litigation. They also refer
generally to fiscal considerations, representing broadly that a stay would benefit
the Commonwealth by not requiring the unnecessary expense of discovery while
the motion remains pending. The defendant also argues that the plaintiff will not
be prejudiced because the plaintiff does not require discovery in order to respond
to the threshold issues raised in the dispositive motion with respect to nonexhaustion of administrative remedies and the application of the two-year statute of
limitations.
As the Court has previously informed the parties, the defendants’ approach
to discovery in this case was irregular and regrettable, since the plaintiff seems to
have been under the impression that depositions and other discovery were in
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process before being notified at the last minute that the defendants or their
witnesses would not be appearing and that they would instead be moving for
summary judgment. It would have been the better practice to seek a stay of
discovery proceedings at the outset, or other protective order, and to put the Court
and the plaintiff on notice regarding threshold legal issues that the defendants
believed required resolution before litigation began in earnest. The defendants
have acknowledged this, but nevertheless argue that their motion as filed presents
meritorious dispositive arguments as to many claims, and that it would be a waste
of resources to no good end if the Court were to require the parties to resume
discovery while the motion remains pending.
Upon consideration, the Court finds that a brief stay of discovery is justified
in this case to allow completion of briefing on the defendants’ motion. The Court
has already concluded that the plaintiff does not need to engage in the kind of
broad discovery that he claims to require in order to respond to the defendants’
motion. Since the plaintiff does not need this discovery to respond to arguments
concerning the non-exhaustion of administrative remedies and the running of the
statute of limitations, the Court agrees that discovery should remain stayed while
the plaintiff focuses his attention on responding to the pending motion. However,
without prejudging that motion, the Court notes that it has some questions
regarding the arguments asserted, including the argument that the plaintiff was
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required to exhaust administrative remedies with respect to a Senior Deputy
Attorney General who represented DOC employees in Abney I, and whether the
running of the statute of limitations may have been tolled or otherwise impacted by
the fact that the plaintiff sought to have the claims in this case made part of Abney
I, and thus did not file this action until this Court denied his motion to supplement
in Abney I. Those issues cannot be properly decided until the parties complete
briefing on them, and the Court finds that it is in the best interest of all parties to
focus their attention on these initial matters, which are likely to lead to clarification
regarding the scope of this litigation, and thus the discovery that may be
appropriate.
At the same time, the Court acknowledges the plaintiff’s frustration what he
perceives as unreasonable discovery delays in this case and in Abney I, and thus
finds that any stay of merits discovery should last only through the briefing on the
pending motion for summary judgment. To allow a blanket stay to remain in place
while the motion for summary judgment is decided risks prejudicing the plaintiff’s
ability to develop facts that may be important to the merits of claims. This is
particularly true given the passage of time since many of the incidents alleged in
the complaint took place. Accordingly, given the questions that the Court has
regarding the ultimate merit some of the the defendants’ dispositive arguments, the
lack of a real particularized showing of hardship to the Commonwealth by
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engaging in at least some discovery in this case, and the risk that a blanket and
open-ended stay of discovery would prejudice the plaintiff, the Court will direct
that discovery be stayed only until briefing on the motion for summary judgment is
completed.
III.

ORDER
Accordingly, for the foregoing reasons IT IS HEREBY ORDERED THAT:
1.

The defendants’ motion for a stay of discovery (Doc. 48) is

GRANTED in part. Discovery in this case shall be stayed until briefing on the
defendants’ motion for summary judgment, as directed in this Order, is completed.
Thereafter, discovery shall be opened.
2.

The plaintiff’s omnibus motion for discovery relief and for leave to

take broad discovery pursuant to Rule 56(d) in order to respond to the defendants’
motion for summary judgment (Doc. 53) is DENIED with the exception that the
parties shall meet and confer regarding the version of the DC-ADM 804 policy that
was in effect during the time period relevant to the plaintiff’s claims.
3.

The plaintiff shall file a substantive response to the defendants’

motion for summary judgment on or before Friday, October 27, 2017.

The

defendants shall be permitted to file a reply brief in further support of their motion
on or before Friday, November 10, 2017. No additional briefing on the motion
shall be permitted without leave of Court.
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4.

The plaintiff’s unopposed motion for an extension of time to complete

discovery and to file additional dispositive motions (Doc. 56) is GRANTED and
the case-management Order of February 17, 2017, is hereby amended as follows:
Close of Fact Discovery:

February 28, 2018

Reports of Experts :

March 14, 2018

Response Reports to Expert Reports:

April 16, 2018

Dispositive Motions and Supporting
Briefs Due:

May 2, 2018

Consent to Proceed Before
United States Magistrate Judge:

May 2, 2018

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: October 6, 2017

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