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Gossard v. Warden, Madison Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

June 6, 2017

Don F. Gossard, Plaintiff,
v.
Warden, Madison Correctional Institution, et al., Defendants.

          MICHAEL H. WATSON JUDGE

          ORDER

          Terence P. Kemp United States Magistrate Judge.

         This 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.

         After 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.

         On 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 Doc. 42.

         Mr. 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.

         In his 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.

         He 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.

         There 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.

         Second, 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 ...


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