(PC) Robinson v. Davey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. ROBINSON, 1:17-cv-01524-DAD-GSA-PC 12 Plaintiff, ORDER GRANTING DEFENDANTS PETERSON AND GERMAN’S MOTION 13 vs. TO MODIFY SCHEDULING ORDER (ECF No. 70.) 14 DAVE DAVEY, et al., ORDER EXTENDING DISCOVERY 15 Defendants. DEADLINE AND DEADLINE TO FILE DISPOSITIVE MOTIONS FOR ALL 16 PARTIES 17 New Discovery Deadline: April 2, 2021 18 New Dispositive Motions Deadline: June 2, 2021 19 20 21 I. BACKGROUND 22 Anthony L. Robinson (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s 24 First Amended Complaint filed on July 2, 2018, against defendant C/O H. German for use of 25 excessive force and against defendants Sgt. A. Peterson and S. Gonzales-Thompson (LVN) for 26 providing inadequate medical care in violation of the Eighth Amendment. (ECF No. 24.) 27 On January 2, 2020, the court issued a Discovery and Scheduling Order establishing 28 pretrial deadlines for the parties, including a discovery deadline of July 2, 2020, and a dispositive 1 motions deadline of September 2, 2020. (ECF No. 61.) On April 15, 2020, the court granted 2 defendants Peterson and German’s motion to modify the Scheduling Order, extending the 3 discovery deadline to October 2, 2020, and the dispositive motions deadline to December 2, 2020, 4 for all parties to this action. (ECF No. 64.) On August 3, 2020, defendants Peterson and German 5 filed another motion to modify the Scheduling Order. (ECF No. 70.) 6 II. MOTION TO MODIFY SCHEDULING ORDER 7 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 8 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 9 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 10 modification of a scheduling order must generally show that even with the exercise of due 11 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 12 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 13 order fails to show due diligence the inquiry should end and the court should not grant the motion 14 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 15 Defendants Peterson and German request the court to extend the deadline to conduct 16 discovery and the deadline to file dispositive motions by 120 days each because due to the 17 COVID-19 crisis, defense counsel has still not been able to depose Plaintiff. This latest request 18 will extend the deadline to conduct discovery to April 2, 2021, and the deadline to file dispositive 19 motions to June 2, 2021. Defense counsel explains that the Office of the Attorney General 20 (OAG) received a memorandum from the California Department of Corrections and 21 Rehabilitation (CDCR) informing the AOG that CDCR is “attempting to maintain inmate and 22 staff safety amid the COVID-19 pandemic” which makes “transport and inmate movement 23 within the institutions difficult, and, in some cases, dangerous,” and CDCR is generally 24 requesting continuances of all depositions through the end of August 2020. (Declaration of 25 David E. Kuchinsky at ¶ 3, Exhibit A.) 26 The court finds good cause to extend the discovery and dispositive motions deadlines in 27 the court’s Discovery and Scheduling Order. Defendants Peterson and German have shown that 28 even with the exercise of due diligence they cannot meet the requirements of the above mentioned 1 order. Therefore, the motion to modify the Scheduling Order filed by defendants Peterson and 2 German on August 3, 2020, shall be granted. 3 III. CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that: 5 1. Defendants Peterson and German’s motion to modify the court’s Scheduling 6 Order, filed on August 3, 2020, is GRANTED; 7 2. The deadline for the completion of discovery is extended from October 2, 2020 8 to April 2, 2021, for all parties to this action; 9 3. The deadline for filing and serving pretrial dispositive motions is extended from 10 December 2, 2020 to June 2, 2021, for all parties to this action; and 11 4. All other provisions of the court’s January 2, 2020 Discovery and Scheduling 12 Order remain the same. 13 IT IS SO ORDERED. 14 15 Dated: August 9, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28