(PC) Barrett v. Ciolli ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ANTHONY BARRETT, Case No. 1:20-cv-01802-JLT-EPG (PC) 8 Plaintiff, 9 LIMITED SCHEDULING ORDER RE: 10 v. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON NON-EXHAUSTION OF 11 ADMINISTRATIVE REMEDIES 12 A. CIOLLI, et al., 13 Defendant(s). 14 15 16 17 This Court sets a limited schedule for this action pending Defendants’ motion for 18 summary judgment on the ground of non-exhaustion of administrative remedies. If this case 19 proceeds after Defendants’ motion for summary judgment on administrative exhaustion issues has 20 been resolved, the Court will issue a scheduling order setting further dates and deadlines in the 21 case. 22 I. DISCOVERY PROCEDURES 23 Pursuant to the Court’s order, the parties have been granted leave to conduct discovery on 24 the issue of whether Plaintiff properly administratively exhausted his claims as required by the 25 Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Discovery regarding the remaining issues in 26 the case, including the merits, is not yet open. Pursuant to Federal Rules of Civil Procedure 1, 16, 27 and 26-36, discovery regarding exhaustion issues shall proceed as follows: 28 1. The parties may take the following types of discovery from other parties: 1 a. Interrogatories (an interrogatory is a written question or request for 2 information and “may relate to any matter that may be inquired into under 3 Rule 26(b).” Fed. R. Civ. P. 33(a)(2)); 4 b. Requests for Production (a request for production is a written request that the 5 opposing party produce documents or electronically stored information, 6 “including writings, drawings, graphs, charts, photographs, sound recordings, 7 images, and other data or data compilations,” or a written request that the 8 opposing party produce any designated tangible things. Fed. R. Civ. P. 9 34(a)(1)); 10 c. Requests for Admissions (a request for admission is a written request that the 11 opposing party “admit, for purposes of the pending action only, the truth of 12 any matters within the scope of Rule 26(b)(1)” that relate to “(A) facts, the 13 application of law to fact, or opinions about either; [or] (B) the genuineness 14 of any described documents.” Fed. R. Civ. P. 36(a)(1)); and 15 d. Depositions (a deposition is where one party (or that party’s counsel) 16 questions someone under oath, and a court reporter is present to record the 17 proceedings).1 18 1. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), 19 Defendant(s) may depose any witness confined in a prison on the 20 condition that, at least fourteen (14) days before such a deposition, 21 Defendant(s) serve all parties with the notice required by Federal 22 Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to participate in 23 a properly noticed deposition could result in sanctions against 24 Plaintiff, including monetary sanctions and/or dismissal of this 25 case. Pursuant to Federal Rule of Civil Procedure 30(b)(4), the 26 parties may take any deposition under this section by video 27 1 “Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those 28 questions and record the answers verbatim.” Fed. R. Civ. P. 30(c)(3). 1 conference without a further motion or order of the Court. 2 2. If Plaintiff wishes to take a deposition, Plaintiff must file a motion 3 requesting permission to do so, specifically showing the ability to 4 comply with the applicable Federal Rules of Civil Procedure by 5 providing the name of the person to be deposed, the name and 6 address of the court reporter who will take the deposition, the 7 estimated cost for the court reporter’s time and the recording, and 8 the source of funds for payment of that cost. Plaintiff bears the 9 responsibility to pay the costs of the deposition, including the cost 10 of copies of deposition transcript(s).2 11 2. A party may serve on any other party no more than 15 interrogatories, 15 requests for 12 production of documents, and 15 requests for admission. If a party wishes to serve 13 additional discovery requests, that party may file a motion for additional discovery 14 requests with the Court, explaining why additional discovery requests are necessary. 15 3. Discovery requests and responses should be sent to the opposing part(ies), or their 16 counsel if represented. They should not be filed with the Court. 17 4. Responses to written discovery requests shall be due forty-five (45) days after the 18 request is first served. Boilerplate objections are disfavored and may be summarily 19 overruled by the Court. Responses to document requests shall include all documents 20 within a party’s possession, custody, or control. Fed. R. Civ. P. 34(a)(1). Documents 21 are deemed to be within a party’s possession, custody, or control if the party has actual 22 possession, custody, or control thereof, or the legal right to obtain the property on 23 demand. If Defendant(s) cannot obtain documents from Plaintiff’s institution(s) of 24 confinement, Defendant(s) shall clearly respond that a third party subpoena will be 25 necessary to obtain documents from Plaintiff’s institution(s) of confinement. 26 5. If any party or third party withholds a document on the basis of privilege, that party or 27 2 The Court may request input from Plaintiff’s institution of confinement to determine if the deposition(s) 28 can proceed in a safe and secure manner before ruling on a motion for a deposition. 1 third party shall provide a privilege log to the requesting party identifying the date, 2 author, recipients, general subject matter, and basis of the privilege within thirty (30) 3 days after the date that responses are due. Failure to provide a privilege log within this 4 time shall result in a waiver of the privilege. Additionally, if a party is claiming a 5 right to withhold witness statements and/or evidence gathered from investigation(s) 6 into the incident(s) at issue in the complaint based on the official information privilege 7 or confidentiality, the withholding party shall submit the withheld witness statements 8 and/or evidence to the Court for in camera review, along with an explanation of why 9 the witness statements and/or evidence should be withheld.3 The witness statements 10 and/or evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 Tulare 11 Street, Sixth Floor, Fresno, CA 93721. The withholding party shall also file and serve 12 a notice that they have complied with this order. All other claims of privilege may be 13 challenged via a motion to compel. 14 6. If Plaintiff seeks documents from someone who is not a party in this case, Plaintiff 15 must file a request for the issuance of a subpoena duces tecum with the Court. In any 16 request for a subpoena, Plaintiff must: (1) identify the documents sought and from 17 whom; (2) explain why the documents are relevant to the claims in this case; and (3) 18 make a showing in the request that the records are only obtainable through a third 19 party. If the Court approves the request, it may issue Plaintiff a subpoena duces 20 3 See Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“[P]roper exhaustion improves the quality of those 21 prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, 22 witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.”). 23 The “common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant 24 and subject to disclosure. . . .” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of 25 interests in ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”) (quoting Kerr v. 26 U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) 27 (“Government personnel files are considered official information. To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is 28 greater, the privilege bars discovery.”) (internal citations omitted). 1 tecum, commanding the production of documents from a non-party, and may 2 command service of the subpoena by the United States Marshals Service. Fed. R. Civ. 3 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 4 only if the documents sought from the non-party are not obtainable from Defendant(s) 5 through a Rule 34 request for production of documents. 6 7. The parties are required to act in good faith during the course of discovery and the 7 failure to do so may result in the payment of expenses pursuant to Federal Rule of 8 Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal 9 Rules of Civil Procedure or the Local Rules. 10 8. If any party believes that a motion to compel further discovery responses is necessary, 11 they should promptly bring the matter to the Court’s attention. The motion(s) should 12 include a copy of the request(s) and any response to the request(s) at issue. The 13 responding party may file a response to the motion no later than twenty-one days from 14 the date the motion is filed. If, after reviewing the motion(s) and response(s), the 15 Court determines that a hearing will be helpful, the Court will set a hearing on the 16 motion(s) to compel. 17 II. PAGE LIMITS AND COURTESY COPIES 18 The parties are advised that unless prior leave of the Court is obtained before the filing 19 deadline,4 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25) 20 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do 21 not include exhibits. 22 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 23 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies shall 24 reflect the CM/ECF document numbers and pagination. 25 III. EXHAUSTION MOTION DEADLINE AND BRIEFING 26 The deadline for Defendant(s) to present any challenge for failure to exhaust 27 administrative remedies is June 6, 2022. Defendant(s) shall simultaneously provide Plaintiff with 28 4 Parties may seek leave by filing a short motion. 1 | the notice and warning required by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Failure to 2 | raise the exhaustion defense by this deadline will result in waiver of the defense. See Albino v. 3 | Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question should be 4 | decided as early as feasible). 5 Plaintiffs response to the motion shall be filed within twenty-one (21) days after the date 6 | the motion is served. Defendants may file a reply, if any, not more than fourteen (14) days after 7 | the opposition has been filed in CM/ECF. See E.D. Cal. L.R. 230d). The motion will be deemed 8 | submitted when the time to reply has expired. If the Court determines that a hearing on the 9 | motion is necessary, it will set a hearing by separate order. 10 If a party needs an extension of any of these deadlines, that party may file a motion for an 11 | extension of time explaining why an extension is necessary.> 12 | IV. EFFECT OF THIS ORDER 13 This order represents the Court’s best estimated schedule for Defendants’ motion for 14 | summary judgment on administrative exhaustion grounds. Any party unable to comply with the 15 || dates outlined in this order shall immediately file an appropriate motion or stipulation identifying 16 | the requested modification(s). 17 The dates set in this order are considered to be firm and will not be modified absent a 18 | showing of good cause, even if a stipulation to modify is filed. 19 Failure to comply with this order may result in the imposition of sanctions. 20 IT IS SO ORDERED. 22 | Dated: _ April 8, 2022 [see hey — UNITED STATES MAGISTRATE JUDGE 24 25 26 27 5 If Plaintiff requests an extension due to a lack of law library access, he should attach his request for law library access and/or paging services, as well as the institution’s response to his request (if any), to his motion for an 28 | extension of time.