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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT GONZALES,

Plaintiff, No. CIV S-04-1064 FCD CMK P

vs.

S. PALAGUMMI,

Defendant. AMENDED ORDER

 /

On May 10, 2005, the court filed an order ruling on several motions recently filed

in this action. It comes to the court’s attention that the court mistakenly ordered that “Plaintiff’s

motion for a protective order staying discovery is granted” when it should have ordered that

“Defendants’ motion for a protective order staying discovery is granted.” To avoid any

confusion, the court issues the following amended order:

Currently before the court are the following motions. Plaintiff’s April 11, 2005

motion for an extension of time to effect discovery. Plaintiff’s April 11, 2005 motion to strike

Section III of defendants’ motion to dismiss, which pertains to plaintiff’s state law negligence

claim, and Defendants’ motion for a protective order regarding discovery. 

The court has not issued any discovery order in this case. Plaintiff appears to have

filed his April 11, 2005 motion to extend time to file and serve discovery in response to

plaintiff’s motion to dismiss his complaint for failure to exhaust administrative remedies. 

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Defendants oppose plaintiff’s request for an extension on the grounds that discovery is

inappropriate at this juncture as all salient facts are before the court. The exhaustion

requirement does not impose a pleading requirement on the prisoner, but instead creates a

defense that must be raised and proved by defendants. There is no need for plaintiff to conduct

any discovery to respond to defendants’ motion as he bears no burden to refute their claims that

he failed to exhaust. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 & 1119 n.13 (9th Cir.2003). 

Accordingly, plaintiff’s motion for an extension of time to effect discovery is denied. 

In his April 11, 2005 motion to strike part III of defendants’ motion to dismiss,

plaintiff states that his complaint does not set forth any state law claims and that he is proceeding

exclusively on federal claims under 42 U.S.C. § 1983. On the condition that plaintiff is

proceeding solely on federal claims, defendants do not oppose plaintiff’s motion to strike. 

Accordingly it is granted.

Finally, on April 18, 2005, defendants filed a motion to stay discovery on the

grounds that discovery is inappropriate at this time in light of the pending motion to dismiss

plaintiff’s complaint for failure to exhaust. On April 25, 2005, plaintiff filed a response

opposing defendants’ motion and defendants filed a reply to plaintiff’s response on April 27,

2005. Plaintiff asserts that it is necessary for him to undertake discovery to respond to the

pending motion to dismiss. However, as noted above, defendants bear the burden of showing

that plaintiff has failed to exhaust his administrative remedies. Further, except for the request for

production of documents propounded to defendants on April 20, 2005, the discovery requested

by plaintiff has no bearing on his exhaustion of his administrative remedies. Defendants are

directed to respond to plaintiff’s April 20, 2005 discovery request. All other discovery in this

case is stayed pending the court’s ruling on defendants’ motion to dismiss. 

///

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IT IS ORDERED that:

1. Plaintiff’s April 11, 2005 motion for an extension of time is denied; 

2. Plaintiff’s April 11, 2005 motion to strike Section III of defendants’ motion to

dismiss is granted;

3. Defendants are ordered to respond to plaintiff’s April 20, 2005 discovery

request and; 

4. Defendants’ motion for a protective order staying discovery is granted;

discovery is stayed pending the court’s ruling on defendants’ motion to dismiss, at which time, if

appropriate, the court will issue a discovery order. 

DATED: May 11, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

Case 2:04-cv-01064-FCD-CMK Document 53 Filed 05/11/05 Page 3 of 3