(PC) Robinson v. Davey ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ANTHONY L. ROBINSON, 1:17-cv-01524-DAD-GSA-PC 9 Plaintiff, ORDER GRANTING DEFENDANTS’ THIRD MOTION TO MODIFY 10 vs. SCHEDULING ORDER (ECF No. 83.) 11 DAVE DAVEY, et al., ORDER EXTENDING DISCOVERY 12 Defendants. DEADLINE AND DEADLINE TO FILE DISPOSITIVE MOTIONS FOR ALL 13 PARTIES 14 New Discovery Deadline: November 1, 2021 15 New Dispositive Motions Deadline: January 3, 2022 16 17 I. BACKGROUND 18 Anthony L. Robinson (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on Plaintiff’s 20 First Amended Complaint filed on July 2, 2018 against defendant C/O H. German for use of 21 excessive force, and against defendants Sgt. A. Peterson and S. Thomas-Beltran1 (LVN) for 22 providing inadequate medical care in violation of the Eighth Amendment. (ECF No. 24.) 23 On January 2, 2020, the court issued a Discovery and Scheduling Order establishing 24 pretrial deadlines for the parties, including a discovery deadline of July 2, 2020, and a dispositive 25 motions deadline of September 2, 2020. (ECF No. 61.) On April 15, 2020, the court granted 26 defendants Peterson and German’s motion to modify the Scheduling Order extending the 27 28 1 Sued as S. Gonzales-Thompson. 1 discovery deadline to October 2, 2020, and the dispositive motions deadline to December 2, 2020, 2 for all parties to this action. (ECF No. 64.) On August 3, 2020, defendants Peterson and German 3 filed another motion to modify the Scheduling Order. (ECF No. 70.) Thereafter, on August 10, 4 2020, the court again granted defendants Peterson and German’s motion to modify the 5 Scheduling Order, extending the discovery deadline to April 2, 2021, and the dispositive motions 6 deadline to June 2, 2021, for all parties to this action. (ECF No. 71.) On February 22, 2021, 7 Plaintiff filed a motion to modify the Scheduling Order. (ECF No. 78.) On March 19, 2021, the 8 court granted Plaintiff’s motion to modify the Scheduling Order extending the discovery deadline 9 to August 2, 2021, and the dispositive motions deadline to October 4, 2021, for all parties to this 10 action. (ECF No. 79.) 11 On August 2, 2021, defendants Peterson, German, and Gonzales-Thompson 12 (“Defendants”) filed a third motion to modify the Scheduling Order. (ECF No. 83.) 13 II. MOTION TO MODIFY SCHEDULING ORDER 14 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 15 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 16 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 17 modification of a scheduling order must generally show that even with the exercise of due 18 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 19 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 20 order fails to show due diligence the inquiry should end and the court should not grant the motion 21 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 22 Defendants request the court to extend the deadline to conduct discovery and the deadline 23 to file dispositive motions by 90 days each due to the COVID-19 crisis. Defense counsel has not 24 been able to depose Plaintiff. In addition, Defendants have not received any responses to 25 Defendants’ discovery requests or written correspondence. (Decl. of David E. Kuchinsky, ECF 26 No. 83-1 ¶ 4.) Good cause appearing, the deadline to conduct discovery shall be extended to 27 November 1, 2021, and the deadline to file dispositive motions shall be extended to January 3, 28 2022. 1 Defense counsel has also notified the court that on July 9, 2021, he received a copy of 2 Plaintiff’s Second Motion for Request of Extension of Time of Discovery Deadline, which for 3 an unknown reason was never filed with the court. (Id. ¶ 5 & Exh. B.) In the motion Plaintiff 4 requests a 60-day extension of time to respond to Defendants’ outstanding discovery requests, as 5 well as a 60-day extension of the discovery and dispositive motion deadlines. (Id.) Defendants 6 request that the court allow Plaintiff an additional 60 days to respond to Defendants’ outstanding 7 discovery requests. (Id. ¶10.) Good cause appearing, Plaintiff shall be granted an additional 60 8 days to respond to Defendants’ outstanding discovery requests. 9 III. CONCLUSION 10 Based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that: 11 1. Defendants’ third motion to modify the court’s Scheduling Order, filed on August 12 2, 2021, is GRANTED; 13 2. The deadline for the completion of discovery is extended from August 2, 2021 14 2021 to November 1, 2021, for all parties to this action; 15 3. The deadline for filing and serving pretrial dispositive motions is extended from 16 October 4, 2021 to January 3, 2022, for all parties to this action; 17 4. Plaintiff is granted an extension of time until 60 days from the date of service of 18 this order in which to serve responses to Defendants’ outstanding discovery 19 requests; and 20 5. All other provisions of the court’s January 2, 2020 Discovery and Scheduling 21 Order remain the same. 22 IT IS SO ORDERED. 23 24 Dated: August 6, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28