(PC) Madrid v. De La Cruz ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID JOSEPH MADRID, Case No. 1:18-cv-00947-DAD-EPG (PC) 10 Plaintiff, ORDER FOLLOWING INITIAL SCHEDULING CONFERENCE 11 v. 12 A. DE LA CRUZ and M. LOPEZ, 13 Defendants. 14 15 David Madrid (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 16 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated 17 in Los Angeles County Jail. 18 On March 2, 2020, at 1:30 p.m., the Court attempted to hold an Initial Scheduling 19 Conference (“Conference”). (ECF No. 63). Prior to the Conference, the Court issued an order 20 directing Los Angeles County Jail to make Plaintiff available for the Conference. (ECF No. 60, 21 p. 2). Additionally, court staff specially set up a phone line compliant with Los Angeles 22 County Jail requirements, so that Plaintiff could participate telephonically in the Conference. 23 Defense counsel Jaime Ganson telephonically appeared at the conference. Plaintiff did 24 not appear.1 Given the difficulties in arranging the Conference, as well as Defendants’ 25 assertion that they intend to file a motion for summary judgment for failure to exhaust available 26 1 Approximately thirty minutes after the conference was scheduled to begin, Irma Munoz, a Courtroom 27 Deputy for another judge in this division, received a call from someone purporting to be Plaintiff’s mother. According to the caller, Plaintiff has retained counsel for this case. However, Plaintiff’s attorney did not appear at 28 the conference and has not entered an appearance in this case. 1 administrative remedies (ECF No. 62, p. 4), the Court will not schedule the case or set a further 2 scheduling conference at this time. Instead, the Court will limit discovery to the issue of 3 exhaustion,2 and give Defendants ninety days from the date of service of this order to file a 4 motion for summary judgment for failure to exhaust.3 5 Additionally, given Defendants’ assertion that they have not received Plaintiff’s initial 6 disclosures (id. at 2), the Court will direct Plaintiff to serve defense counsel with his initial 7 disclosures within thirty days from the date of this order. 8 Finally, the Court notes that Defendants allege that discovery requests Defendants 9 mailed to Plaintiff “were returned to [defense counsel] with the handwritten notation ‘refused 10 mail’ on the front of the envelope. Defendants seek assistance from the Court to advise Madrid 11 of his duty to timely respond to these discovery requests.” (Id. at 3) (citation omitted). It is not 12 clear who wrote “refused mail” on the envelope, or why the mail was refused. However, the 13 Court warns Plaintiff that if he fails to participate in this case, including by failing to respond to 14 discovery requests, he may be sanctioned. 15 Based on the foregoing, IT IS ORDERED that: 16 1. Discovery is stayed except as to the issue of exhaustion of administrative 17 remedies. 18 2. Defendants have ninety days from the date of service of this order to file a 19 motion for summary judgment for failure to exhaust available administrative 20 remedies. Failure to raise the exhaustion issue by this deadline will result in 21 waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) 22 (providing that the exhaustion question should be decided as early as feasible). 23 3. Plaintiff has thirty days from the date of service of this order to serve 24 Defendants’ counsel with his initial disclosures. As discussed in the Court’s 25 prior order (ECF No. 46), Plaintiff shall provide Defendants with “[t]he name 26 27 2 The Court opened discovery on January 8, 2020. (ECF No. 60). 3 While the Court is limiting discovery at this time, the Court may open discovery generally and set a 28 schedule prior to the resolution of Defendants’ motion for summary judgment. 1 and, if known, the address and telephone number of each individual likely to 2 have discoverable information—along with the subjects of that information—that 3 [Plaintiff] may use to support [his] claims or defenses, unless the use would be 4 solely for impeachment.” (Id. at 3). Plaintiff shall also provide Defendants with 5 a “copy—or a description by category and location—of all documents, 6 electronically stored information, and tangible things that [Plaintiff] has in [his] 7 possession, custody, or control and may use to support [his] claims or defenses, 8 unless the use would be solely for impeachment.” (Id.) 9 io IS SO ORDERED. Dated: _Mareh 3, 2020 [Je hey 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28