1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDLY A. ATHERLEY, II, Case No.: 19cv2355-LAB-DEB
12 Plaintiff, ORDER: 13 v. 1) OVERRULING OBJECTIONS 14 SCOTT KERNAN, et al., TO JANUARY 6, 2022 R&R 15 Defendants. [Dkt. 38, 39];
16 2) ADOPTING SEPTEMBER 12, 17 2022 R&R [Dkt. 66]; AND
18 3) AMENDING SCHEDULING 19 ORDER [Dkt. 55, 74, 77] 20
21 On January 24, 2022, the Court issued an Order adopting the January 6, 22 2022 Report and Recommendation (“January 6th R&R”) issued by Magistrate 23 Judge Daniel Butcher, denying Defendants’ motion to dismiss the First Amended 24 Complaint (“FAC”) as to Plaintiff Edly A. Atherley, II’s claims against Defendants 25 Pamplin and Strong, and dismissing with prejudice Atherley’s claims against 26 Defendants Hultz, Jaramillo, Joyner, and Crespo. (Dkt. 30). Atherley subsequently 27 submitted a letter to the Clerk of Court, claiming he never received a copy of the 28 January 6th R&R and was therefore unable to timely file objections by the 1 January 20, 2022 objection deadline. (Dkt. 33). The Court granted him leave to file 2 objections to the extent he wished the Court to reconsider its prior ruling, and on 3 March 10, 2022, the Court received Atherley’s memorandum of points and 4 authorities in support of his objections to the January 6th R&R. (Dkt. 39). 5 Then, on June 3, 2022, Atherley separately filed a motion for leave to file an 6 amended complaint to add additional parties and claims. (Dkt. 51). Judge Butcher 7 issued a R&R on September 12, 2022 (“September 12th R&R”), recommending 8 denial of the motion for leave to amend and reinstatement of the claims in 9 Atherley’s FAC that were previously dismissed as barred by the holding in Heck v. 10 Humphrey, 512 U.S. 447 (1994). (Dkt. 66). Judge Butcher additionally 11 recommended granting the parties’ motion to extend discovery and motion filing 12 deadlines by three months. (Dkt. 55). 13 For the following reasons, the Court OVERRULES Atherley’s objections to 14 the January 6th R&R and ADOPTS Judge Butcher’s September 12th R&R in its 15 entirety. 16 I. OBJECTIONS TO JANUARY 6TH R&R 17 On June 7, 2021, Defendants moved to dismiss Atherley’s FAC on the 18 grounds that he failed to exhaust his administrative remedies and his claims are 19 barred by the holding in Heck. (Dkt. 24). Judge Butcher then issued his January 6th 20 R&R with the following recommendations: (1) deny the motion to dismiss based 21 on Atherley’s alleged failure to exhaust his administrative remedies; (2) grant the 22 motion to dismiss Atherley’s claims against Defendants Hultz, Jaramillo, Joyner, 23 and Crespo as barred under Heck; and (3) deny the motion to dismiss Atherley’s 24 post-restraint claims against Defendants Pamplin and Strong. (Dkt. 29). This Court 25 did not receive any objections to the January 6th R&R by the objection deadline 26 and issued an order adopting the R&R in full. (Dkt. 30). 27 Atherley now objects to the R&R on multiple grounds, all of which relate to 28 whether his claims against Defendants are barred by Heck. (Dkt. 39). However, as 1 provided in the following section, his claims against Defendants Hultz, Jaramillo, 2 Joyner, and Crespo have since been reinstated as not barred by Heck, thus 3 rendering his objections on this issue moot. Additionally, the Court already 4 determined that his claims against Defendants Pamplin and Strong survive 5 because those claims relate to actions that occurred after the incident that formed 6 the basis of Atherley’s loss of credit, and thus are not barred by Heck. (Dkt. 30 at 7 1–2). Atherley nevertheless objects to Judge Butcher’s characterization of Pamplin 8 and Strong’s involvement during the incident in question, but the Court need not 9 engage in this analysis given the present determination that none of Atherley’s 10 claims are Heck-barred and because Judge Butcher’s characterization of the 11 events in question does not affect whether those claims survive. 12 Accordingly, Atherley’s objections to the January 6th R&R are OVERRULED 13 AS MOOT. 14 II. SEPTEMBER 12TH R&R 15 On June 3, 2022, Atherley submitted a motion for leave to file an amended 16 complaint, seeking to add new parties, reallege some of the same Constitutional 17 violations already alleged in his FAC, and allege new Constitutional violations at 18 Mule Creek State Prison (“Mule Creek”), where Atherley is currently housed. 19 (Dkt. 51). On September 12, 2022, Judge Butcher issued a R&R, recommending 20 that this Court deny the motion to amend but reinstate the claims in the FAC that 21 were previously dismissed as barred by Heck. (Dkt. 66). Judge Butcher reasons 22 that, to the extent Atherley seeks to reintroduce any claims unrelated to the July 12 23 and 14, 2017 incidents, leave should be denied because Atherley has not 24 demonstrated how dismissal of those claims was erroneous. (Id. at 5). He also 25 recommends denial of leave to amend for the purpose of renumbering and “more 26 succinctly articulat[ing]” the claims, as doing so is unnecessary at this stage. (Id.). 27 As for Atherley’s claims that were previously dismissed as barred by Heck, Judge 28 Butcher recommends that they be reinstated where Defendants concede that 1 “Plaintiff is serving an indeterminate sentence of fifteen (15) years to life.” (Id. 2 at 6 n.2 (citing Dkt. 57 at 6 n.3)); see Nettles v. Grounds, 830 F.3d 922, 935 3 (9th Cir. 2016) (holding a claim that “would not necessarily lead to immediate or 4 earlier release from confinement . . . does not fall within ‘the core of habeas 5 corpus’” and must be brought under § 1983) (internal citation omitted); Roman v. 6 Knowles, No. 07-cv-1343-JLS-POR, 2011 WL 3741012, *11–12 (S.D. Cal. 7 June 20, 2011) (explaining Heck does not bar a challenge to a disciplinary finding 8 with credits forfeiture brought by a state prisoner serving an indeterminate life 9 sentence). Finally, with respect to Atherley’s request to add claims against staff at 10 Mule Creek regarding court access, emotional distress, and an attempted prison 11 transfer, Judge Butcher recommends that these claims be denied because they 12 are unrelated to the transactions, occurrences, and claims made in the FAC. 13 (Dkt. 66 at 6). 14 A district court has jurisdiction to review a magistrate judge’s report and 15 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge 16 must determine de novo any part of the magistrate judge’s disposition that has 17 been properly objected to.” Id. “A judge of the court may accept, reject, or modify, 18 in whole or in part, the findings or recommendations made by the magistrate 19 judge.” 28 U.S.C. § 636(b)(1). The “statute makes it clear that the district judge 20 must review the magistrate judge’s findings and recommendations de novo if 21 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 22 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). 23 Objections to the R&R were due on September 27, 2022, but neither party 24 has filed an objection to date. The Court has reviewed the R&R and ADOPTS it in 25 full. Atherley’s motion for leave to amend is DENIED, and the claims previously 26 dismissed as Heck-barred are REINSTATED. The parties also request that the 27 Court extend the discovery and motion filing deadlines by three months due to the 28 pendency of Atherley’s motion to amend. (Dkt. 55, 74, 77). For good cause shown, 1 the current pretrial deadlines are VACATED and the Court ORDERS that the 2 Scheduling Order be amended as follows: 3 1. All parties shall designate their respective experts in writing by 4 February 6, 2023.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDLY A. ATHERLEY, II, Case No.: 19cv2355-LAB-DEB
12 Plaintiff, ORDER: 13 v. 1) OVERRULING OBJECTIONS 14 SCOTT KERNAN, et al., TO JANUARY 6, 2022 R&R 15 Defendants. [Dkt. 38, 39];
16 2) ADOPTING SEPTEMBER 12, 17 2022 R&R [Dkt. 66]; AND
18 3) AMENDING SCHEDULING 19 ORDER [Dkt. 55, 74, 77] 20
21 On January 24, 2022, the Court issued an Order adopting the January 6, 22 2022 Report and Recommendation (“January 6th R&R”) issued by Magistrate 23 Judge Daniel Butcher, denying Defendants’ motion to dismiss the First Amended 24 Complaint (“FAC”) as to Plaintiff Edly A. Atherley, II’s claims against Defendants 25 Pamplin and Strong, and dismissing with prejudice Atherley’s claims against 26 Defendants Hultz, Jaramillo, Joyner, and Crespo. (Dkt. 30). Atherley subsequently 27 submitted a letter to the Clerk of Court, claiming he never received a copy of the 28 January 6th R&R and was therefore unable to timely file objections by the 1 January 20, 2022 objection deadline. (Dkt. 33). The Court granted him leave to file 2 objections to the extent he wished the Court to reconsider its prior ruling, and on 3 March 10, 2022, the Court received Atherley’s memorandum of points and 4 authorities in support of his objections to the January 6th R&R. (Dkt. 39). 5 Then, on June 3, 2022, Atherley separately filed a motion for leave to file an 6 amended complaint to add additional parties and claims. (Dkt. 51). Judge Butcher 7 issued a R&R on September 12, 2022 (“September 12th R&R”), recommending 8 denial of the motion for leave to amend and reinstatement of the claims in 9 Atherley’s FAC that were previously dismissed as barred by the holding in Heck v. 10 Humphrey, 512 U.S. 447 (1994). (Dkt. 66). Judge Butcher additionally 11 recommended granting the parties’ motion to extend discovery and motion filing 12 deadlines by three months. (Dkt. 55). 13 For the following reasons, the Court OVERRULES Atherley’s objections to 14 the January 6th R&R and ADOPTS Judge Butcher’s September 12th R&R in its 15 entirety. 16 I. OBJECTIONS TO JANUARY 6TH R&R 17 On June 7, 2021, Defendants moved to dismiss Atherley’s FAC on the 18 grounds that he failed to exhaust his administrative remedies and his claims are 19 barred by the holding in Heck. (Dkt. 24). Judge Butcher then issued his January 6th 20 R&R with the following recommendations: (1) deny the motion to dismiss based 21 on Atherley’s alleged failure to exhaust his administrative remedies; (2) grant the 22 motion to dismiss Atherley’s claims against Defendants Hultz, Jaramillo, Joyner, 23 and Crespo as barred under Heck; and (3) deny the motion to dismiss Atherley’s 24 post-restraint claims against Defendants Pamplin and Strong. (Dkt. 29). This Court 25 did not receive any objections to the January 6th R&R by the objection deadline 26 and issued an order adopting the R&R in full. (Dkt. 30). 27 Atherley now objects to the R&R on multiple grounds, all of which relate to 28 whether his claims against Defendants are barred by Heck. (Dkt. 39). However, as 1 provided in the following section, his claims against Defendants Hultz, Jaramillo, 2 Joyner, and Crespo have since been reinstated as not barred by Heck, thus 3 rendering his objections on this issue moot. Additionally, the Court already 4 determined that his claims against Defendants Pamplin and Strong survive 5 because those claims relate to actions that occurred after the incident that formed 6 the basis of Atherley’s loss of credit, and thus are not barred by Heck. (Dkt. 30 at 7 1–2). Atherley nevertheless objects to Judge Butcher’s characterization of Pamplin 8 and Strong’s involvement during the incident in question, but the Court need not 9 engage in this analysis given the present determination that none of Atherley’s 10 claims are Heck-barred and because Judge Butcher’s characterization of the 11 events in question does not affect whether those claims survive. 12 Accordingly, Atherley’s objections to the January 6th R&R are OVERRULED 13 AS MOOT. 14 II. SEPTEMBER 12TH R&R 15 On June 3, 2022, Atherley submitted a motion for leave to file an amended 16 complaint, seeking to add new parties, reallege some of the same Constitutional 17 violations already alleged in his FAC, and allege new Constitutional violations at 18 Mule Creek State Prison (“Mule Creek”), where Atherley is currently housed. 19 (Dkt. 51). On September 12, 2022, Judge Butcher issued a R&R, recommending 20 that this Court deny the motion to amend but reinstate the claims in the FAC that 21 were previously dismissed as barred by Heck. (Dkt. 66). Judge Butcher reasons 22 that, to the extent Atherley seeks to reintroduce any claims unrelated to the July 12 23 and 14, 2017 incidents, leave should be denied because Atherley has not 24 demonstrated how dismissal of those claims was erroneous. (Id. at 5). He also 25 recommends denial of leave to amend for the purpose of renumbering and “more 26 succinctly articulat[ing]” the claims, as doing so is unnecessary at this stage. (Id.). 27 As for Atherley’s claims that were previously dismissed as barred by Heck, Judge 28 Butcher recommends that they be reinstated where Defendants concede that 1 “Plaintiff is serving an indeterminate sentence of fifteen (15) years to life.” (Id. 2 at 6 n.2 (citing Dkt. 57 at 6 n.3)); see Nettles v. Grounds, 830 F.3d 922, 935 3 (9th Cir. 2016) (holding a claim that “would not necessarily lead to immediate or 4 earlier release from confinement . . . does not fall within ‘the core of habeas 5 corpus’” and must be brought under § 1983) (internal citation omitted); Roman v. 6 Knowles, No. 07-cv-1343-JLS-POR, 2011 WL 3741012, *11–12 (S.D. Cal. 7 June 20, 2011) (explaining Heck does not bar a challenge to a disciplinary finding 8 with credits forfeiture brought by a state prisoner serving an indeterminate life 9 sentence). Finally, with respect to Atherley’s request to add claims against staff at 10 Mule Creek regarding court access, emotional distress, and an attempted prison 11 transfer, Judge Butcher recommends that these claims be denied because they 12 are unrelated to the transactions, occurrences, and claims made in the FAC. 13 (Dkt. 66 at 6). 14 A district court has jurisdiction to review a magistrate judge’s report and 15 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge 16 must determine de novo any part of the magistrate judge’s disposition that has 17 been properly objected to.” Id. “A judge of the court may accept, reject, or modify, 18 in whole or in part, the findings or recommendations made by the magistrate 19 judge.” 28 U.S.C. § 636(b)(1). The “statute makes it clear that the district judge 20 must review the magistrate judge’s findings and recommendations de novo if 21 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 22 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). 23 Objections to the R&R were due on September 27, 2022, but neither party 24 has filed an objection to date. The Court has reviewed the R&R and ADOPTS it in 25 full. Atherley’s motion for leave to amend is DENIED, and the claims previously 26 dismissed as Heck-barred are REINSTATED. The parties also request that the 27 Court extend the discovery and motion filing deadlines by three months due to the 28 pendency of Atherley’s motion to amend. (Dkt. 55, 74, 77). For good cause shown, 1 the current pretrial deadlines are VACATED and the Court ORDERS that the 2 Scheduling Order be amended as follows: 3 1. All parties shall designate their respective experts in writing by 4 February 6, 2023. The parties must identify any person who may be used at trial 5 to present evidence pursuant to Rules 702, 703 or 705 of the Federal Rules of 6 Evidence. This requirement is not limited to retained experts. The date for 7 exchange of rebuttal experts shall be by February 27, 2023. The written 8 designations shall include the name, address and telephone number of the expert 9 and a reasonable summary of the testimony the expert is expected to provide. The 10 list shall also include the normal rates the expert charges for deposition and trial 11 testimony. 12 2. By February 21, 2023, each party shall comply with the disclosure 13 provisions in Rule 26(a)(2)(B) and (C) of the Federal Rules of Civil Procedure. This 14 disclosure requirement applies to all persons retained or specially employed to 15 provide expert testimony, or whose duties as an employee of the party regularly 16 involve the giving of expert testimony. Except as provided in the paragraph below, 17 any party that fails to make these disclosures shall not, absent substantial 18 justification, be permitted to use evidence or testimony not disclosed at any hearing 19 or at the time of trial. In addition, the Court may impose sanctions as permitted by 20 Fed. R. Civ. P. 37(c). 21 3. Any party shall supplement its disclosure regarding contradictory or 22 rebuttal evidence under Rule 26(a)(2)(D) by February 27, 2023. 23 4. All fact and expert discovery shall be completed by all parties by 24 March 6, 2023. “Completed” means that all discovery under Rules 30–36 of the 25 Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must 26 be initiated a sufficient period of time in advance of the cut-off date, so that it may 27 be completed by the cut-off date, taking into account the times for service, notice 28 and response as set forth in the Federal Rules of Civil Procedure. Counsel shall 1 promptly and in good faith meet and confer with regard to all discovery disputes in 2 compliance with Local Rule 26.1(a). The Court expects counsel to make every 3 effort to resolve all disputes without court intervention through the meet and confer 4 process. If the parties reach an impasse on any discovery issue, counsel shall file 5 an appropriate motion within the time limit and procedures outlined in the 6 undersigned magistrate judge’s chambers rules. A failure to comply in this regard 7 will result in a waiver of a party’s discovery issue. Absent an order of the court, no 8 stipulation continuing or altering this requirement will be recognized by the court. 9 5. All other pretrial motions must be filed by March 13, 2023. Counsel for 10 the moving party must obtain a motion hearing date in accordance with the Civil 11 Standing Order of the Honorable Larry A. Burns. Motions in limine are to be filed 12 as directed in the Local Rules, or as otherwise set by the district judge. 13 6. Counsel shall comply with the pre-trial disclosure requirements of 14 Fed. R. Civ. P. 26(a)(3) by June 12, 2023. Failure to comply with these disclosure 15 requirements could result in evidence preclusion or other sanctions under Fed. R. 16 Civ. P. 37. 17 7. Counsel shall meet and take the action required by Local Rule 18 16.1(f)(4) by June 19, 2023. At this meeting, counsel shall discuss and attempt to 19 enter into stipulations and agreements resulting in simplification of the triable 20 issues. Counsel shall exchange copies and/or display all exhibits other than those 21 to be used for impeachment. The exhibits shall be prepared in accordance with 22 Local Rule 16.1(f)(4)(c). Counsel shall note any objections they have to any other 23 parties’ Pretrial Disclosures under Fed. R. Civ. P. 26(a)(3). Counsel shall 24 cooperate in the preparation of the proposed pretrial conference order. 25 8. Counsel for defendant will be responsible for preparing the pretrial 26 order and arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). 27 By July 3, 2023, defendant’s counsel must provide opposing counsel with the 28 proposed pretrial order for review and approval. Opposing counsel must 1 communicate promptly with defendant’s attorney concerning any objections to 2 form or content of the pretrial order, and both parties shall attempt promptly to 3 resolve their differences, if any, concerning the order. 4 9. The Proposed Final Pretrial Conference Order, including objections to 5 any other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, 6 served and lodged with the Honorable Larry A. Burns by July 10, 2023, and shall 7 be in the form prescribed in and comply with Local Rule 16.1(f)(6). 8 10. The final Pretrial Conference will be held on July 17, 2023, at 9 11:15 a.m. before the Honorable Larry A. Burns. 10 IT IS SO ORDERED. 11 Dated: December 7, 2022 12 Honorable Larry Alan Burns United States District Judge 13
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28