United States District Court, W.D. Washington, Tacoma
ORDER REOPENING DISCOVERY, RESETTING THE DISPOSITIVE
MOTION DEADLINE, AND DENYING MOTION FOR APPOINTMENT OF
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE
proceeds pro se in this action brought under 42
U.S.C. § 1983, which the District Court has referred to
the undersigned pursuant to 28 U.S.C. §§
636(b)(1)(A) and (B) and local Magistrate Judge Rules MJR 1,
3, and 4. The matter is before the Court following remand
from the Ninth Circuit Court of Appeals and on
plaintiff's motion for the appointment of counsel (Dkt.
190) and defendants' motion to re-open discovery and to
set a new dispositive motion deadline. Dkt. 194.
good cause exists to reopen discovery and because further
dispositive motion practice is not foreclosed by the Ninth
Circuit's directions on remand and would assist in the
efficient resolution of this matter, the Court grants
defendants' motion. Because plaintiff has failed to show
the exceptional circumstances necessary to appoint counsel,
the Court denies his motion for the appointment of counsel.
who is housed at the Coyote Ridge Corrections Center,
initiated this matter in April 2016. See Dkt. 1.
Plaintiff named a variety of Department of Corrections (DOC)
officials and employees, including Joe Williamson (a food
service manager), Kerri McTarsney (a grievance coordinator),
and Dale Caldwell (a grievance program manager). See
Dkt. 55, at 26. Plaintiff alleged a variety of claims,
including-as relevant here-retaliation in violation of the
First Amendment, negligence, and “[o]fficial
[m]isconduct, ” arising from incidents that allegedly
occurred at the Stafford Creek Corrections Center.
See Dkt. 55, at 21-24. Subsequently, the District
Court granted defendants' motion for summary judgment of
all plaintiff's claims and dismissed the matter.
See Dkt. 170.
appealed the summary judgment dismissal of his claims.
See Dkt. 188. The Ninth Circuit affirmed the
District Court's summary judgment order except that the
Ninth Circuit held that there was a genuine issue of material
fact regarding plaintiff's retaliation claim against
defendant Williamson. See Becker v. Carney, 765 Fed.
App'x 158, 159 (9th Cir. 2019) (memorandum opinion).
Specifically, the Ninth Circuit held that a fellow
prisoner's sworn declaration (“the McDaniels
declaration”) that plaintiff had submitted created a
genuine issue of material fact regarding whether defendant
Williamson retaliated against plaintiff. See id.
Ninth Circuit reversed and remanded for further proceedings
on plaintiff's retaliation claim against defendant
Williamson and for the District Court to reconsider whether
it would exercise supplemental jurisdiction over
plaintiff's state law claims. See Becker, 765
Fed. App'x at 159. In an order denying rehearing, the
Ninth Circuit further stated that “[t]o the extent that
[plaintiff] seeks clarification on the status of the
retaliation claim against defendants McTarsney and Caldwell,
which is related to the retaliation claim against defendant
Williamson, we clarify now that the retaliation against
McTarsney and Caldwell can be considered by the district
court on remand.” See Order Denying Petition
for Panel Rehearing at 1-2, Becker, No. 18-35373,
765 Fed.Appx. 158 (9th Cir. May 29, 2019).
now requests the appointment of trial counsel. See
Dkt. 190, at 2. Defendants McTarsney, Caldwell, and
Williamson seek to re-open discovery and re-set the
dispositive motion deadline. See Dkt. 194.
Defendants' Request to Reopen Discovery and Reset
Dispositive Motions Deadline
Ninth Circuit's Mandate
asserts that this matter has been referred for trial by the
Ninth Circuit. See Dkt. 19, at 4.
return of the mandate, “the district court cannot give
relief beyond the scope of that mandate”; however,
“‘it may act on matters left open by the
mandate.'” Caldwell v. Puget Sound Elec.
Apprenticeship & Training Trust, 824 F.2d 765, 767
(9th Cir. 1987) (quoting In re Sanford Fork &
Tool, 160 U.S. 247, 256 (1895)). Here, the Ninth
Circuit's mandate does not state that a trial is
necessary. Rather, the Ninth Circuit directed “further
proceedings” on plaintiff's retaliation claims
against defendants Williamson, McTarsney, and Caldwell,
including “reconsider[ation] of whether [to] exercise
supplemental jurisdiction over [plaintiff's] state law
claims.” See Becker, 765 Fed. App'x at
the Ninth Circuit effectively require a trial when it stated
that McDaniels' declaration raised a genuine issue of
material fact. The Ninth Circuit held that this Court had
erred when it determined that plaintiff had no “proof
as to an essential element of his claim” of
retaliation. See Dkt. 162, at 13. The lack of proof
to support an essential element of plaintiff's claim is
only one theory under which a defendant's summary
judgment motion ...