United States District Court, S.D. Ohio, Eastern Division
Don F. Gossard, Plaintiff,
Warden, Madison Correctional Institution, et al., Defendants.
MICHAEL H. WATSON JUDGE
Terence P. Kemp United States Magistrate Judge.
prisoner civil rights case is before the Court to resolve a
procedural issue raised by Plaintiff Don F. Gossard. To place
the matter in context, the Court will briefly review the
procedural history of the case.
the Court denied a motion to dismiss and after an answer was
filed, the Court issued a scheduling order on May 11, 2016
(Doc. 34). It set a discovery cutoff date of January 31,
2017, and a summary judgment motion filing date of February
28, 2017. These dates have not been extended.
February 28, 2017, Defendants moved for summary judgment. Mr.
Gossard filed a timely response on March 13, 2017. He did not
ask for additional time to respond nor suggest that he was
not in a position to file a comprehensive response. After
Defendants filed a reply, the Court issued a Report and
Recommendation on April 10, 2017, recommending that the case
be dismissed because Mr. Gossard did not properly exhaust his
administrative remedies as required by the PLRA. See
Gossard did not file timely objections to the Report and
Recommendation; his objections were filed on May 5, 2017,
which was after the 14-day period to object had elapsed.
Within that 14-day period, however, he did file a motion to
stay the Court's decision on the Report and
Recommendation. It is that motion (Doc. 43), which Defendants
oppose, that is now before the Court for decision.
motion, Mr. Gossard seeks to invoke the procedures set forth
in Fed.R.Civ.P. 56(d). That rules says:
(d) When Facts Are Unavailable to the Nonmovant. 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.
argues that he should be permitted to conduct additional
discovery into the factual basis for the motion, including
the institutional logs referred to by Defendants in their
declaration, and should also be allowed to request more
information about what happened to his cellmate after the
incident in question, whether his cellmate was on medication,
and when and how he had been disciplined.
are at least two significant problems with the motion to
stay. First, as noted above, the discovery cutoff date in
this case was January 31, 2017. Such a date set in a
scheduling order issued under Fed.R.Civ.P. 16(b) can be
extended only upon a showing of good cause, and that showing
requires the moving party to demonstrate that, despite the
exercise of due diligence during the discovery period, the
discovery at issue could not have been obtained. See,
e.g., Commerce Benefits Group v. McKesson Corp., 326
Fed.Appx. 369 (6th Cir. May 20, 2009); Deghand v.
Wal-Mart Stores, 904 F.Supp. 1218, 1221 (D. Kan. 1995);
see also Cromwell v. Electra Cent. Credit Union, 439
F.3d 1018, 1027 (9th Cir. 2006). Mr. Gossard has not made
such a showing. There is no reason he could not have asked
for this information at any time between May of 2016 and
January of 2017.
a Rule 56(d) motion ordinarily precedes a ruling on the
summary judgment motion, and is made in lieu of the filing of
a memorandum in opposition. As the Court of Appeals for the
First Circuit explained in Nieves-Romero v. United
States, 715 F.3d 375, 381 (1st Cir. 2013), “[a]
party cannot have two bites at the cherry: he ordinarily
cannot oppose a summary judgment motion on the merits and,
after his opposition is rejected, try to save the day by