(PC) Ellesbury v. Fernandez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE VERNE ELLESBURY, No. 2: 18-cv-2744 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 J. FERNANDEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are plaintiff’s June 8, 2020 motions to modify the 19 scheduling order and for a hearing. (ECF Nos. 76, 77.) Defendants have not opposed these 20 motions. 21 For the reasons stated herein, plaintiff’s motion to modify the scheduling order is granted. 22 Plaintiff’s motion for a hearing is denied. 23 Motion to Modify the Scheduling Order 24 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and 25 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily 26 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, 27 Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot 28 reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was 1 not diligent, the inquiry should end. Id. 2 The deadline for filing dispositive motions was June 24, 2020. (ECF No. 75.) In the 3 pending motion, plaintiff seeks a sixty days extension to file a dispositive motion. (ECF No. 76.) 4 The grounds of this request are that he has limited law library access due to the COVID 19 crisis. 5 Plaintiff also alleges that he has inadequate access to the jailhouse lawyer who is helping plaintiff 6 prepare his summary judgment motion. 7 Good cause appearing, plaintiff’s unopposed motion to modify the scheduling order is 8 granted. Plaintiff is granted sixty days from the date of this order to file a summary judgment 9 motion. 10 Motion for Hearing 11 Plaintiff seeks a hearing regarding his jailhouse lawyer’s alleged inability to bring 12 plaintiff’s legal materials to the exercise yard so that he and plaintiff may consult regarding 13 plaintiff’s summary judgment motion. 14 Plaintiff alleges that inmate Brown, his jailhouse lawyer, received a rules violation report 15 for bringing plaintiff’s legal materials to the exercise yard. Plaintiff alleges that before COVID 16 19, bringing legal documents to the yard was not an issue. Plaintiff alleges that Correctional 17 Officer Guzman issued inmate Brown the rules violation report in an attempt to deter inmate 18 Brown from helping plaintiff with this case. Plaintiff alleges that Correctional Officer Guzman’s 19 order to inmate Brown to return plaintiff’s legal materials to inmate Brown’s cell is based on an 20 underground regulation that is not enforceable. 21 Attached to plaintiff’s motion is the rules violation report issued by Correctional Officer 22 Guzman to inmate Brown. The report states that Correctional Officer Guzman charged inmate 23 Brown with disobeying an order. Inmate Brown allegedly had legal work on his person when he 24 went to his job, in violation of a memorandum stating that inmate workers are not allowed to take 25 legal or personal property to their work areas. Correctional Officer Guzman issued the rules 26 violation report to inmate Brown after inmate Brown allegedly disputed Correctional Officer 27 Guzman’s order to return the paperwork to his cell. 28 //// wOASe 2: LOU VEE OING INVITING IN RAVUIOCE O DL □□□ Vite FP OAyet Vv VI 1 Also attached to plaintiff's motion is a memorandum dated April 26, 2019 stating that 2 | inmates attending work and school may only bring their lunch, water and school papers to work 3 | and school. The April 26, 2019 memorandum states that inmates attending work and school are 4 | not allowed to take any other state or personal property to their work or educational assignments. 5 Also attached to plaintiff's motion is inmate Brown’s grievance challenging the Rules 6 | Violation Report issued by Correctional Officer Guzman. In this grievance, inmate Brown 7 || requests that prison officials “demonstrate the policy that allows or enforces the requirement of 8 | not bringing legal materials to work by a yard worker. Explain to the appellant why legal 9 | materials is forbidden by appellant on his job.” 10 In essence, plaintiff is seeking a hearing to determine whether prison officials violated 11 | inmate Brown’s rights by prohibiting him from bringing plaintiff's legal materials to his job on 12 | the yard. Pro se plaintiffs are prohibited from pursuing claims on behalf of others in a 13 | representative capacity. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). For 14 | this reason, plaintiff's motion for a hearing to determine whether prison officials violated inmate 15 | Brown’s rights by prohibiting him from bringing plaintiffs legal materials to his job on the yard 16 || is denied. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff's motion to modify the scheduling order (ECF No. 76) is granted; plaintiff is 19 granted sixty days from the date of this order to file a summary judgment motion; 20 2. Plaintiff's motion for a hearing (ECF No. 77) is denied. 21 | Dated: July 13, 2020 2 Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 El2744.mod 25 26 27 28