United States District Court, D. Alaska
RUSSELL P. BARTLETT, Plaintiff,
LUIS A. NIEVES, in his personal capacity and BRYCE L. WEIGHT, in his personal capacity, Defendants.
ORDER RE PLAINTIFF'S MOTION TO STAY JUDGMENT,
OPEN DISCOVERY AND ALLOW SUPPLEMENTAL BRIEFING ON RETALIATORY
L. GLEASON UNITED STATES DISTRICT JUDGE
the Court at Docket 104 is Plaintiff Russell P.
Bartlett's Motion to Stay Judgment, Open Discovery and
Allow Supplemental Briefing on Retaliatory Arrests.
Defendants Luis A. Nieves and Bryce L. Weight responded in
opposition at Docket 107. Mr. Bartlett replied at Docket 108.
Oral argument was not requested and was not necessary to the
Bartlett's case is on remand to this Court from the Ninth
Circuit. After the Supreme Court rendered its
opinion in this case,  the Ninth Circuit issued its mandate on
June 20, 2019. Consistent with that mandate, this Court
issued a notice of intent to reinstate the judgment on June
28, 2019. In response to the notice of intent, Mr.
Bartlett filed the pending motion.
Ninth Circuit remanded to this Court “for further
proceedings consistent with the Supreme Court's
opinion.” In its ruling, the Supreme Court found
that “Bartlett's retaliation claim cannot survive
summary judgment.” This Court is bound by the Supreme
Court's holding and denies Mr. Bartlett's motion on
even if this Court were not bound by the Supreme Court's
ruling, Mr. Bartlett has failed to show that he was diligent
in pursuing the discovery he now seeks and has not
demonstrated that good cause exists to reopen discovery and
allow supplemental briefing on the issue of retaliatory
Bartlett brought this action on March 2, 2015. Fact discovery
closed on January 15, 2016. Both parties moved for summary
judgment prior to the March 29, 2016 deadline for dispositive
motions. Mr. Bartlett now asks this Court to reopen
fact discovery and permit supplemental briefing on summary
judgment issues more than three years later.
Court evaluates Mr. Bartlett's request under Fed.R.Civ.P.
16(b) governing modifications to the Court's pretrial
schedule. Under Fed.R.Civ.P. 16(b), the Court's pretrial
scheduling order can only be modified to reopen discovery
“for good cause.” The “good cause”
inquiry “primarily considers the diligence of the party
seeking the amendment.” The Court “may modify
the pretrial schedule ‘if it cannot reasonably be met
despite the diligence of the party seeking the
extension.'” While “prejudice to the party
opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving
party's reasons for seeking modification . . . [and] if
that party is not diligent, the inquiry should
Bartlett must show that he diligently sought this discovery
when discovery was open in 2015. Although Mr. Bartlett had
ample reason and opportunity to then seek the discovery he
now requests, he failed to do so. Ford v. City of
Yakima governed the issue of retaliatory arrests in this
Circuit at the time the parties were engaged in
discovery. Under Ford, Mr. Bartlett needed
to show that “the officers' desire to chill his
speech was a but-for cause” of his
arrest. The evidence that Mr. Bartlett now
seeks-“evidence that he was arrested when otherwise
similarly situated individuals not engaged in protected
speech had not been”-was pertinent to causation
under Ford. Mr. Bartlett does not dispute that the
requested evidence was relevant under Ford nor does
he contend that he diligently sought to obtain such evidence
during the discovery period.
Mr. Bartlett asserts that because the Supreme Court created a
“new exception to the legal framework for arrests
retaliating against the exercise of free speech rights,
” he “should have an opportunity to address this
the “new exception” that the Supreme Court held
at best puts Mr. Bartlett in the situation he was in during
discovery when Ford was in effect: his claim might
not be barred by law and the issue of causation would go to a
trier of fact. As the Ninth Circuit held in this case, under
Ford, Mr. Bartlett could have proceeded with his
claim of retaliatory arrest with the question of causation
“determined by a trier of fact” even when the
officers had probable cause for the arrest. Since then,
the Supreme Court has adopted a “no-probable-cause
rule, ” concluding that “[a]bsent such a showing,
a retaliatory arrest claim fails.” The Supreme
Court recognized “a narrow qualification . . . for
circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do
so.” After “making the required showing
[for the exception], the plaintiff's claim may proceed in
the same manner as claims where the plaintiff has met the
threshold showing of the absence of probable cause,
” i.e., if he met the exception, Mr.
Bartlett could proceed as he would have under Ford.
the Supreme Court's decision does not provide Mr.
Bartlett a new avenue for pursing his retaliatory arrest
claim. For this additional reason, the Court denies Mr.
light of the foregoing, Plaintiff's Motion to Stay
Judgment, Open Discovery and Allow Supplemental Briefing on
Retaliatory Arrests at Docket 104 is DENIED. The Clerk of