(PC) Burchett v. California Dept of Corr and Rehabilitations ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PETER BURCHETT, Case No. 1:19-cv-00055-NONE-EPG (PC) 10 Plaintiff, ORDER DENYING DEFENDANT’S 11 MOTION TO CONTINUE INITIAL v. SCHEDULING CONFERENCE 12 13 JANE DOE, et al., (ECF No. 98) 14 Defendants. 15 16 Peter Burchett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. 18 On July 2, 2020, the Court set an initial scheduling conference for Monday, October 26, 19 2020, at 1:30 p.m. (ECF No. 87). On October 12, 2020, defendant Ramirez filed a scheduling 20 conference statement. (ECF No. 97). That scheduling conference report confirmed the 21 scheduling conference set for October 26, 2020, and raised a number of issues related to 22 scheduling the case and discovery. 23 On Friday, October 23, 2020, at 3:13 p.m., the last business day before the conference, 24 defendant Ramirez (“Defendant”) filed a motion to continue the initial scheduling conference. 25 (ECF No. 98). While labelled as a motion to continue the scheduling conference, Defendant does 26 not pose any new date for a continued conference and instead asks that the conference be 27 continued indefinitely or cancelled in its entirety. This motion is now before the Court. 28 Defendant’s motion states that “Defense counsel has been informed that correctional 1 institutions across California continue to endeavor to prevent and mitigate the spread and 2 exposure to COVID-19.” (Id. at 2). “Given the equipment-related challenges, defense counsel 3 has been informed that there is a need to limit remote appearances such as the telephonic 4 appearance scheduled in this case.” (Id.). “Accordingly, Defendant requests the Court continue 5 the initial scheduling conference set in this case to a future date when telephonic appearances can 6 be accommodated without exacerbating the issues discussed above. In the alternative, and in the 7 interest of avoiding further delays, Defendant requests that the Court issue a scheduling and 8 discovery order that does not require the initial scheduling conference.” (Id.). 9 Defendant’s motion will be denied. 10 As an initial matter, Defendant’s motion is untimely. Defendant provides no explanation 11 regarding why he waited until the Friday afternoon before the Monday conference to file the 12 motion. The conference was set in July. The memo regarding limiting appearances is dated June 13 16, 2020. There are no emergency or changed circumstances justifying this late filing. Even 14 Defendant’s scheduling conference statement, which was filed on October 12, makes no mention 15 of a need for a continuance. Given that the Court, Plaintiff, and Plaintiff’s institution has relied 16 on this schedule already, the Court declines to cancel the conference at this last minute. Indeed, 17 the Court has no way to deliver this order to Plaintiff prior to the conference. 18 Turning to the substance of the motion, Defendant provides no good cause to cancel the 19 conference. While Defendant cites to a general need to limit appearances, citing a June 2020 20 letter, there is nothing unique about this conference that would require its cancellation. Plaintiff 21 is not currently in quarantine. There is no indication that other conferences have been set for the 22 same time as this one. Indeed, there is no information specific to either Plaintiff or the institution. 23 Defendant’s motion is based entirely on a general desire throughout the state to limit appearances 24 when possible. 25 Nor does Defendant claim that an initial scheduling conference is unnecessary in this case. 26 Defendant’s Scheduling Conference Statement is eight pages long and identifies numerous issue 27 that warrant discussion. For instance, Defendant states that he is unilaterally withholding 28 multiple relevant documents, including photographs, pursuant to the official information ene nee IE IEE II IIE OSE NDEI I IEE IE 1 | privilege, without providing any information regarding the relevant balancing test. See, e.g., Kerr 2 | v.U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (“common law 3 | governmental privilege (encompassing and referred to sometimes as the official or state secret 4 | privilege) .. . is only a qualified privilege, contingent upon the competing interests of the 5 || requesting litigant and subject to disclosure. . . .”) (internal citations omitted). Defendant’s 6 | statement itself asks for clarification from Plaintiff, something that will be done at the initial 7 | scheduling conference. (ECF No. 97, p. 4 (“It is unclear if Plaintiffs position is that he has 8 | discharged his initial disclosures obligation under this Court’s order requiring initial disclosures, 9 | dated July 2, 2020.... As such, Defendant respectfully requests clarification from Plaintiff as to 10 | whether he has any other documents in his possession. ...”)). There are Doe Defendants in this 11 | case, which warrant a discussion regarding the procedure and timing for identifying such 12 | defendants. Finally, Defendant states that he may move for summary judgment on exhaustion, 13 | but provides very little information regarding the potential motion. Depending on the strength of 14 || the motion and when it is filed, this could affect the schedule in this case. 15 Accordingly, given that the motion is untimely and because there are issues that should be 16 || addressed at the conference, IT IS ORDERED that defendant Ramirez’s motion to continue the 17 || initial scheduling conference is DENIED.!' 18 19 IT IS SO ORDERED. 20 | Dated: _ October 26, 2020 [sf Fy □ 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 ~The Court notes that it has recently held initial scheduling conferences in other prisoner civil rights cases without issue. If the situation has changed such that all California institutions are now less able to accommodate 26 phone conferences in civil cases at this time due to COVID-19, counsel for the California Department of Corrections and Rehabilitation is invited to reach out to the Court to discuss potential changes to the Court’s general procedures, 27 to determine if there is a way to accommodate the institutions’ legitimate safety concerns, while fairly proceeding 28 with scheduling and discovery in these cases. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28