(PC) White-Soto v. Starr ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 YASYN WHITE-SOTO, Case No. 1:19-cv-00457-BAM (PC) 10 Plaintiff, ORDER GRANTING DEFENDANT’S SECOND MOTION TO MODIFY 11 v. DISCOVERY AND SCHEDULING ORDER 12 STARR, et al., (ECF No. 28) 13 Defendants. Exhaustion Motion Deadline: June 18, 2020 14 15 Plaintiff Yasyn White-Soto (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 17 Plaintiff’s complaint against Defendant Starr for excessive force in violation of the Eighth 18 Amendment and retaliation in violation of the First Amendment. 19 Pursuant to the Court’s January 9, 2020 Discovery and Scheduling Order, (ECF No. 21), 20 and April 6, 2020 order granting Defendant’s ex parte motion to modify discovery and scheduling 21 order, (ECF No. 25), the deadline for filing motions for summary judgment for failure to exhaust 22 administrative remedies is May 9, 2020. 23 On May 8, 2020, Defendant filed a second motion to modify the scheduling order to 24 extend the exhaustion-based motion deadline by forty days, up to and including June 18, 2020. 25 (ECF No. 28.) Although Plaintiff has not had an opportunity to respond to the motion, the Court 26 finds a response unnecessary and the motion is deemed submitted. Local Rule 230(l). 27 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and 28 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily 1 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, 2 Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot 3 reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was 4 not diligent, the inquiry should end. Id. 5 Defense counsel states that good cause exists to modify the scheduling order because the 6 Office of the Attorney General for the State of California has asked its employees to refrain from 7 coming into the office to work and to work remotely, due to the ongoing COVID-19 crisis. (ECF 8 No. 28.) Counsel has continued to experience delays in working primarily from home with no 9 remote access. In addition, counsel has been advised that there is a several week delay for 10 declarations to be reviewed and finalized by the Office of Appeals due to telecommuting due to 11 COVID-19 and changes at the office in the review process. Counsel has a good faith belief that 12 there is an exhaustion defense in this case, and that Defendant will be able to file his motion 13 within the new deadline requested. In the alternative, Defendant requests that the Court allow 14 him to bring the exhaustion defense along with a merit-based summary judgment motion. (Id.) 15 Having considered Defendant’s moving papers, the Court finds good cause to continue the 16 exhaustion-based dispositive motion deadline in this action. Defendant has worked diligently to 17 prepare this motion for summary judgment, in an attempt to expeditiously address a potentially 18 dispositive issue now, rather than in a later dispositive motion or at trial. The Court finds that 19 Plaintiff will not be prejudiced by the brief extension requested here, particularly as the Court has 20 also granted Plaintiff an extension of time to respond to Defendant’s written discovery requests. 21 Based on the foregoing, Defendant’s second motion to modify the scheduling order, (ECF 22 No. 28), is HEREBY GRANTED. Motions for summary judgment for failure to exhaust 23 administrative remedies shall be filed on or before June 18, 2020. IT IS SO ORDERED. 24 25 Dated: May 8, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28