(PC) Garraway v. Ciufo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MITCHELL GARRAWAY, 1:17-cv-00533-DAD-GSA-PC 12 Plaintiff, ORDER IN RESPONSE TO PLAINTIFF’S AFFIDAVIT FILED ON FEBRUARY 11, 13 vs. 2020 (ECF No. 91.) 14 JACQUILINE CIUFO, et al., 15 Defendants. 16 17 I. BACKGROUND 18 Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights 19 action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now 20 proceeds with Plaintiff’s original Complaint filed on April 17, 2017, against defendants 21 Jacqueline Ciufo (Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza 22 (collectively, “Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. 23 (ECF No. 1.) 24 On February 11, 2020, Plaintiff filed an affidavit in support of his motion to compel 25 discovery responses. (ECF No. 91.) 26 II. PLAINTIFF’S AFFIDAVIT 27 Plaintiff asserts that he was not provided a full opportunity to complete discovery and 28 therefore was unable to properly oppose Defendants’ motion for judgment on the pleadings and 1 motion for summary judgment. Plaintiff asserts that for the past twelve months: (1) Defendants 2 have refused to respond to Plaintiff’s request for the Federal Bureau of Prisons inmate 3 investigative report, USP-Atwater case No. ATW-16-0161; (2) Defendants have refused to turn 4 over personnel files for Ciprian and the three defendants specifically related to his claims, and 5 (3) the court has refused to rule on Plaintiff’s motion to compel filed on January 17, 2019. 6 Plaintiff requests that Defendants’ motion for judgment on the pleadings and motion for 7 summary judgment be denied, and Defendants be required to respond to Plaintiff’s motion to 8 compel. 9 III. DISCUSSION 10 Discovery in this case has been stayed in part since April 1, 2019, when the court granted 11 Defendants’ motion to stay discovery pending resolution of Defendants’ motion for judgment on 12 the pleadings. (ECF No. 65.) As discussed in the court’s order, all discovery was stayed with 13 exception to discovery related to the Supreme Court’s ruling in Ziglar v. Abassi, 137 S.Ct. 1843 14 (2017), as Defendants’ motion for judgment on the pleadings concerns whether Plaintiff’s Bivens 15 claims are barred under Abassi. The parties were precluded from conducting any other discovery 16 until after the motion for judgment on the pleadings is resolved, at which time the court shall 17 issue a new scheduling order re-opening discovery if needed. 18 Plaintiff argues that the court refuses to rule on his motion to compel filed on January 17, 19 2019. Plaintiff is reminded that the court’s April 1, 2019 order made reference to Plaintiff’s 20 motion to compel filed on January 17, 2019, stating: 21 “On January 17, 2019, Plaintiff filed a motion to compel discovery 22 responses from Defendants. (ECF No. 35.) In the motion, Plaintiff does not seek 23 any discovery relating to the Abassi issue. Therefore, the court shall defer ruling 24 on Plaintiff’s motion to compel until after Defendants’ motion for judgment on 25 the pleadings is resolved.” 26 (ECF No. 65 at 3, n.1.) Thus, Plaintiff’s motion to compel shall not be ruled upon until after 27 Defendants’ motion for judgment on the pleadings is resolved. Accordingly, Plaintiff’s request 28 for the court to rule on his motion to compel shall be denied at this stage of the proceedings. 1 Plaintiff’s request for the court to deny Defendants’ motion for judgment on the pleadings 2 and motion for summary judgment is untimely and shall be denied. Plaintiff has previously filed 3 timely oppositions to Defendants’ motions, which shall be considered in due course. 4 IV. CONCLUSION 5 Based on the foregoing, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s request to deny Defendants’ motion for judgment on the pleadings and 7 motion for summary judgment is DENIED as untimely; and 8 2. Plaintiff’s request for the court to require Defendants to respond to Plaintiff’s 9 pending motion to compel, is DENIED at this stage of the proceedings. 10 IT IS SO ORDERED. 11 12 Dated: February 18, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28