(PC) Washington v. Hicks ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRACYE BENARD WASHINGTON, 1:19-cv-00156-NONE-GSA-PC 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO MODIFY DISCOVERY AND 13 vs. SCHEDULING ORDER (ECF No. 44.) 14 HICKS, et al., ORDER EXTENDING DISCOVERY 15 Defendants. DEADLINE AND DEADLINE TO FILE DISPOSITIVE MOTIONS FOR ALL 16 PARTIES 17 New Discovery Deadline: August 6, 2021 18 New Dispositive Motions Deadline: October 6, 2021 19 20 21 I. BACKGROUND 22 Tracye Benard Washington (“Plaintiff”) is a state prisoner proceeding pro se with this 23 civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 24 Complaint filed on February 5, 2019, against defendants Sergeant David Hicks and Correctional 25 Officer Hipolito Rocha (“Defendants”) for use of excessive force in violation of the Eighth 26 Amendment. (ECF No. 1.)1 27 28 1 On June 22, 2020, the court issued an order dismissing all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (ECF No. 19.) 1 On December 8, 2020, the court issued a Discovery and Scheduling Order, establishing 2 pretrial deadlines, including a discovery deadline of May 8, 2021, and a dispositive motions 3 deadline of July 8, 2021. (ECF No. 28.) On January 19, 2021, the court issued an order extending 4 the application of the Discovery and Scheduling Order to defendant Hicks.2 (ECF No. 36.) 5 On May 7, 2021, defendant Rocha filed a motion to modify the court’s Discovery and 6 Scheduling Order. (ECF No. 44.) On May 10, 2021, defendant Hicks joined defendant Rocha’s 7 motion. (ECF No. 45.) 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 Rocha and Hicks request a ninety-day extension of the discovery and 18 dispositive motions deadlines in the court’s Discovery and Scheduling order because of 19 Plaintiff’s failure to cooperate in his deposition and refusal to answer essential questions 20 regarding the material facts, witnesses, and documents in this case. Defendants assert that despite 21 their efforts to meet the discovery cut-off date it was not apparent until Plaintiff’s deposition that 22 the deadline could not be met without prejudicing Defendants. Defendants request that the 23 current deadlines be modified so they may obtain and review the deposition transcript, serve 24 follow-up written discovery, and file any further motions to compel. 25 /// 26 /// 27 28 2 Defendant Rocha filed an answer to the complaint on December 7, 2020, and defendant Hicks filed an answer to the complaint on December 23, 2020. (ECF Nos. 27, 36.) 1 David C. Goodwin, California Deputy Attorney General and counsel for defendant 2 Rocha, filed a declaration describing Plaintiff’s conduct at his deposition held on May 5, 2021, 3 which lasted approximately seven hours: 4 “Plaintiff refused to discuss his basic criminal history, such as his prior 5 criminal convictions and dates, aside from his current commitment offense. 6 (Goodwin Decl. ¶ 6.) 7 During a brief break, and immediately after the deposition was off record, 8 Plaintiff called me a ‘retard.’ (Goodwin Decl. ¶ 7.) I then called the deposition 9 back on record to memorialize the event, and two correctional officer witnesses 10 confirmed that they heard Plaintiff state that word. (Id.) 11 At one point, Plaintiff physically moved his webcam so that no one could 12 see him. (Id. ¶ 8.) I then had to ask the attending correctional officers to adjust 13 the camera so that Plaintiff was visible. (Id.) 14 Throughout the deposition, Plaintiff repeatedly called me ‘Mr. Chauvin’ 15 and ‘Derek Chauvin,’ in reference to the Minneapolis police officer who was 16 convicted of the infamous murder of George Floyd. (Id. ¶ 9.) Addressing the 17 correctional officers who were present at the deposition, Plaintiff told them that I 18 ‘look like Derek Chauvin.’ (Id.) Plaintiff also responded to questions by telling 19 me to ‘get off his neck,’ in another reference to Chauvin’s murder of George 20 Floyd. (Id.) 21 Plaintiff also made references that he was pleased to finally see what I 22 ‘look like,’ in a suggestive manner which I interpreted as veiled threats. (Id. ¶ 10.) 23 Plaintiff called me a racist, a ‘silly rabbit,’ and a ‘proud boy,’ and remarked that I 24 should ‘storm the Capitol.’ (Id. ¶ 11.) Plaintiff asked rhetorical questions 25 regarding how long I have been practicing law and accused me of being 26 unprofessional. (Id. ¶ 12.) Plaintiff’s statements were demeaning and offensive, 27 and obstructed my ability to conduct a meaningful deposition. (Id. ¶ 13.) Plaintiff 28 also repeatedly yelled at me, and over me, while I tried ask questions or to make 1 a record, and he ignored the court reporter’s admonishments that she could not 2 record all of the testimony. (Id.) 3 Plaintiff also impeded, delayed, and frustrated the examination of 4 identifying documents that support his claims. (Goodwin Decl. ¶ 14.) For 5 example, when asked what documents support his claims, he referred to ‘law and 6 facts.’ (Id.) He also made vague references to ‘reports’ and ‘medical records,’ but 7 frustrated and delayed further questioning to identify specific documents by going 8 on extensive, non-responsive tangents. (Id.) 9 Plaintiff similarly refused to identify witnesses that support his claims. 10 (Id. ¶ 15.) When questioned regarding people who might have information 11 regarding the subjects of this lawsuit, he frustrated and delayed the examination 12 by responding facetiously, listing George Floyd and religious figures such as God, 13 Jesus Christ, Yahweh, and others. (Id.) He also stated that he had a list of Egyptian 14 gods when asked to identify witnesses. (Id.) Plaintiff similarly frustrated 15 questioning regarding his damages, by going on extensive, non-responsive 16 tangents, arguments, or diatribes, despite my repeated efforts to get the 17 examination back on topic.” (Id. ¶ 16.) 18 (Decl. of David Goodwin, ECF No. 44-2 at 2 ¶ 6 – 3 ¶ 16.) 19 Cecilia Martin, counsel for defendant Hicks, who also attended the deposition, also filed 20 a declaration in support of the motion to modify the scheduling order: 21 “While Plaintiff provided extensive information in response to some of 22 Mr. Goodwin’s questions, the majority was only tangentially connected to the 23 subject matter at hand. Within a matter of hours, it became clear that Plaintiff 24 would not permit his deposition to be taken by Mr. Goodwin as Plaintiff talked 25 over Mr. Goodwin and provided responses to Mr. Goodwin’s questions which 26 largely consisted of vague references to reports and other and/or records which 27 allegedly supported his claims (Plaintiff refused to give direct information as to 28 any report or record), references to ‘God,’ and ‘Yahweh’ as witnesses that 1 Plaintiff claims he intends to call at trial, and various insults directed at Mr. 2 Goodwin both personally and professionally. (Martin Decl., ¶ 5.) 3 Particularly alarming was Plaintiff’s statements concerning Mr. 4 Goodwin’s alleged likeness to Derek Chauvin, the Minneapolis police officer who 5 was recently found guilty of murder for causing the death of Mr. George Floyd. 6 (Id. ¶ 6.) Indeed, Plaintiff repeatedly yelled at Mr. Goodwin to ‘get off my neck’ 7 and made other references indicating what appeared to be Plaintiff’s belief that 8 Mr. Goodwin is racist, in response to Mr. Goodwin’s general questions regarding 9 the matters at issue in Plaintiff’s case. (Id.) Plaintiff’s statements displayed what 10 appeared to be a particular hostility or animus towards Mr. Goodwin. (Id.) This 11 resulted in the frustration of the entire deposition as the majority of questions were 12 left unanswered after hours of examination.” (Id.) 13 (Decl. of Cecilia Martin, ECF No. 45-1 at 2-3 ¶¶ 5 – 6.) 14 Based on the above, the court finds good cause to extend the discovery and dispositive 15 motions deadlines in the court’s Discovery and Scheduling order. Defendants have shown that 16 even with the exercise of due diligence they cannot meet the requirements of the court’s 17 Discovery and Scheduling Order. Therefore, the motion to modify the Discovery and Scheduling 18 Order filed by defendant Rocha and joined by defendant Hicks shall be granted. 19 III. CONCLUSION 20 Based on the foregoing, IT IS HEREBY ORDERED that: 21 1. Defendant Rocha’s motion to modify the court’s Discovery and Scheduling 22 Order, filed on May 7, 2021, and joined by defendant Hicks on May 10, 2021, is 23 GRANTED; 24 2. The deadline for the completion of discovery is extended from May 8, 2021 to 25 August 6, 2021 for all parties to this action; 26 3. The deadline for filing and serving pretrial dispositive motions is extended from 27 July 8, 2021 to October 6, 2021 for all parties to this action; and 28 /// 1 4. All other provisions of the court’s December 8, 2020 Discovery and Scheduling 2 Order remain the same. 3 IT IS SO ORDERED. 4 5 Dated: May 12, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28