(PC) Bowell v. Montoya ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BOWELL, 1:17-cv-00605-NONE-GSA-PC 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO MODIFY SCHEDULING 13 vs. ORDER (ECF No. 63.) 14 F. MONTOYA, et al., ORDER EXTENDING DISCOVERY 15 Defendants. DEADLINE, AND DEADLINE TO FILE DISPOSITIVE MOTIONS FOR ALL 16 PARTIES 17 New Discovery Deadline: November 24, 2020 18 New Dispositive Motions Deadline: January 24, 2021 19 20 21 22 23 24 I. BACKGROUND 25 James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 26 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 27 First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for 28 violation of due process under the Fourteenth Amendment, and against defendants Killmer and 1 Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under 2 the Eighth Amendment. (ECF No. 16.)1 3 On February 24, 2020, the court issued a Discovery and Scheduling Order establishing 4 pretrial deadlines for the parties, including a discovery deadline of August 24, 2020, and a 5 dispositive motions deadline of October 24, 2020. (ECF No. 63.) On June 19, 2020, Defendants 6 filed a motion to modify the Scheduling Order. (ECF No. 67.) Plaintiff has not filed an 7 opposition to the motion. 8 II. MOTION TO MODIFY SCHEDULING ORDER 9 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 10 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 11 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 12 modification of a scheduling order must generally show that even with the exercise of due 13 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 14 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 15 order fails to show due diligence the inquiry should end and the court should not grant the motion 16 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 17 Defendants request extensions of discovery deadline until November 24, 2020, and the 18 dispositive motions deadline until January 24, 202, because “they are currently unable to depose 19 Plaintiff on prison grounds due to the COVID-19” pursuant to a request by the California 20 Department of Corrections and Rehabilitation to “temporarily refrain from scheduling prison 21 depositions.” (ECF No. 67 at 3:14-17 and Declaration of Byron Miller at ¶2.) 22 The court finds good cause to grant Defendants’ motion and extend the discovery and 23 dispositive motions deadlines in the court’s Discovery and Scheduling order. Plaintiff has not 24 opposed the motion and Defendants have shown that even with the exercise of due diligence, 25 they cannot meet the requirements of the order. Therefore, Defendants’ motion to modify the 26 Scheduling Order shall be granted. 27 28 1 On October 25, 2018, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 20.) 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Defendants’ motion to modify the court’s Scheduling Order, filed on June 19, 4 2020, is GRANTED; 5 2. The deadline for the completion of discovery is extended from August 24, 2020 6 to November 24, 2020 for all parties to this action; 7 3. The deadline for filing and serving pretrial dispositive motions is extended from 8 October 24, 2020 to January 24, 2021 for all parties to this action; and 9 4. All other provisions of the court’s February 24, 2020 Discovery and Scheduling 10 Order remain the same. 11 IT IS SO ORDERED. 12 13 Dated: July 10, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28