(PC) Rayford v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE RAYFORD, 1:19-cv-00225-AWI-GSA-PC 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO MODIFY SCHEDULING ORDER 13 vs. (ECF No. 42.) 14 SHERMAN, et al., ORDER EXTENDING DEADLINE TO FILE EXHAUSTION MOTIONS 15 Defendants. New Exhaustion Motion Filing Deadline: December 18, 2021 16 17 18 19 20 I. BACKGROUND 21 Eugene Rayford (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 23 Second Amended Complaint, filed on January 11, 2021, against defendants Stu Sherman 24 (Warden) and Richard Milam (Supervisor of Building Trades) (collectively “Defendants”) for 25 subjecting Plaintiff to adverse conditions of confinement in violation of the Eighth Amendment. 26 (ECF No. 24.)1 27 28 1 On March 9, 2021, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 28.) 1 On May 18, 2021, the court issued a Discovery and Scheduling Order establishing pretrial 2 deadlines for the parties, including an exhaustion motion filing deadline of August 18, 2021, 3 discovery deadline of October 18, 2021, and dispositive motion filing deadline of December 18, 4 2021. (ECF No. 35.) 5 On August 10, 2021, Defendants filed a motion to modify the Scheduling Order. (ECF 6 No. 42.) 7 II. MOTION TO MODIFY SCHEDULING ORDER 8 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 9 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 10 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 11 modification of a scheduling order must generally show that even with the exercise of due 12 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 13 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 14 order fails to show due diligence the inquiry should end and the court should not grant the motion 15 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 16 Defendants request an extension of the deadline for filing exhaustion motions until 17 December 18, 2021, which is the same deadline for filing dispositive motions. Defense counsel 18 declares that he is “still evaluating whether to bring an exhaustion motion in this case, and [has] 19 determined that it will be necessary to take Plaintiff’s deposition before [he] can make a final 20 decision.” (Decl. of Sean Lodholz, ECF No. 42-1 ¶ 4.) Defense counsel believes that “it will be 21 more efficient for Defendants, the Court, and Plaintiff to address exhaustion and the merits in a 22 single dispositive motion, instead of two separate motions.” (Id.) 23 The court finds good cause to grant Defendants’ motion and extend the exhaustion motion 24 filing deadline from August 18, 2021 to December 18, 2021. Defendants have shown good 25 cause. Therefore, Defendants’ motion to modify the Discovery and Scheduling Order shall be 26 granted. 27 /// 28 III. CONCLUSION 1 Based on the foregoing, IT IS HEREBY ORDERED that: 2 1. Defendants’ motion to modify the court’s Discovery and Scheduling Order, filed 3 on August 10, 2021, is GRANTED; 4 2. The deadline for filing exhaustion motions is extended from August 18, 2021 to 5 December 18, 2021; 6 3. All other provisions of the court’s May 18, 2021 Discovery and Scheduling Order 7 remain the same. 8 IT IS SO ORDERED. 9 10 Dated: August 11, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28