(PC) L.C. Cunningham v. Martinez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 L.C. CUNNINGHAM, Case No. 1:19-cv-01508-AWI-EPG (PC) 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 MOTION TO MODIFY THE COURT’S v. DISCOVERY AND SCHEDULING ORDER 14 M. MARTINEZ, et al., (ECF No. 77) 15 Defendants. 16 17 18 L.C. Cunningham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On May 27, 2021, Defendants filed a motion to modify the scheduling order. (ECF No. 21 77). “Defendants Martinez and Harmon move for an order modifying the deadline to file an 22 exhaustion-based motion for summary judgment in this matter on the grounds that Defendants 23 need additional time to secure a declaration for the Chief of the Office of Appeals, H. Moseley, to 24 complete the motion. Additionally, Defendants’ counsel is scheduled to be on intermittent 25 personal leave from May 18 to July 7, 2021. Based on those reasons, Defendants seek an 26 additional sixty days to complete an exhaustion-based motion for summary judgment.” (Id. at 1). 27 As granting the motion will not change any other dates or deadlines in the schedule, and 28 as Defendants have shown good cause for an extension, the Court will grant the motion. 1 Accordingly, IT IS ORDERED that Defendants have until July 26, 2021, to present any 2 | challenge for failure to exhaust administrative remedies. Failure to raise the exhaustion defense 3 | by this deadline will result in waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 4 | (9th Cir. 2014) (providing that the exhaustion question should be decided as early as feasible). 5 All other deadlines in the Scheduling Order shall remain as previously set. 6 7 IT IS SO ORDERED. Dated: _ June 1, 2021 [spe ey □ 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28