(PC) Barrett v. Ciolli ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BARRETT, Case No. 1:20-cv-01802-JLT-EPG (PC) 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ APPLICATION FOR LEAVE TO FILE PRE- 14 A. CIOLLI, et al., ANSWER MOTION FOR SUMMARY JUDGMENT ON EXHAUSTION OF 15 Defendants. ADMINISTRATIVE REMEDIES 16 (ECF No. 48) 17 Plaintiff Anthony Curtis Barrett (“Plaintiff”) is a federal inmate proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Federal Narcotics 19 Agents, 403 U.S. 388 (1971). 20 On March 28, 2022, Defendants A. Ciolli, Cobbs, C. Hanson, A. Leger, Rodriguez, Scott, 21 and Young (“Defendants”) filed an application requesting: 1) leave to file a pre-answer motion 22 for summary judgment on exhaustion of administrative remedies; 2) leave to take Plaintiff’s 23 deposition on administrative exhaustion issues; and 3) an extension of time to respond to the 24 complaint until after the Court rules on the motion for summary judgment. (ECF No. 48.) 25 Defendants explain that Plaintiff failed to exhaust his administrative remedies and Defendants 26 therefore plan to move for summary judgment on that basis. (Id. at 3.) Defendants request that the 27 Court permit them to file the exhaustion motion for summary judgment and to conduct discovery 28 1 regarding exhaustion prior to filing a response to the complaint, while reserving the right to file a 2 responsive pleading, including a motion to dismiss, if the Court denies summary judgment. (Id.) 3 On March 29, 2022, the Court entered an order directing Plaintiff to file a response to the 4 application. (ECF No. 49.) The Court further extended Defendants’ deadlines to respond to the 5 complaint pending issuance of an order on Defendants’ application. (Id.) 6 On April 4, 2022, Plaintiff filed a motion which, among other things, included a response 7 to Defendants’ application.1 (ECF No. 50.) Plaintiff states that he did exhaust his administrative 8 remedies and has receipts. (Id.) Plaintiff was told to file a tort claim instead, which he did at two 9 different times on various issues. (Id.) 10 Having considered the application and Plaintiff’s response, and in the interest of 11 efficiency and judicial economy, the Court will grant Defendants’ request to file a pre-answer 12 motion for summary judgment on exhaustion grounds on an expedited basis. The Court will also 13 grant all parties leave to conduct discovery regarding exhaustion issues, including written 14 discovery, and a limited deposition of Plaintiff on the issue of administrative exhaustion.2 15 Defendants’ deadline to respond to the complaint will also be extended until after a final ruling on 16 the motion or further order by the Court.3 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Defendants’ Application for Leave to File Pre-Answer Motion for Summary Judgment 19 on Exhaustion of Administrative Remedies (ECF No. 48) is GRANTED as follows; 20 2. On or before June 6, 2022, Defendants may file a motion for summary judgment on 21 the ground that Plaintiff failed to exhaust administrative remedies; 22 3. The parties are granted leave to conduct discovery on administrative exhaustion issues 23 only, including a limited deposition of Plaintiff solely on the issue of administrative 24 25 1 The motion also requested appointment of counsel. (See ECF No. 50.) The Court will address this request by separate order. 26 2 The Court will separately issue a limited scheduling order addressing discovery procedures. 27 3 Note that the Court may order an earlier response following submission of the exhaustion motion or as otherwise 28 may be appropriate under the circumstances of the case. een nee en ne on nn nn EE NI EE EI ED OE 1 exhaustion; 2 4. Within thirty (30) days from the date of service of this order, each party shall serve the 3 opposing party, or their counsel if represented, with copies of any documents 4 regarding exhaustion of Plaintiff's claims, including any requests for administrative 5 remedies, appeals, and responses from the appeals office;* and 6 5. The deadline for Defendants to respond to the complaint is extended to fourteen (14) 7 days after issuance of a final ruling on Defendants’ motion for summary judgment on 8 non-exhaustion of administrative remedies, unless otherwise ordered by the Court. 9 10 IT IS SO ORDERED. 11! Dated: _ April 8, 2022 [sf ey 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 | 4 The parties are required to produce those documents that they have in their possession, custody, or control. The parties do not need to produce documents or evidence that they have already produced in the course of this litigation, 28 | or documents or evidence that was provided to them by the opposing party.