(PC) Dixon v. Oleachea ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Nathaniel Dixon, No. 2:15-cv-02372-KJM-AC 12 Plaintiff, ORDER 13 v. 14 David Oleachea, et al., 1S Defendants. 16 17 Plaintiff Nathaniel Dixon, who is incarcerated and proceeding in forma pauperis, alleges 18 | the defendant, a correctional officer, used excessive force while attempting to remove him from 19 | the prison’s visiting area in 2011. See generally First Am. Compl., ECF No. 9. Mr. Dixon was 20 | not previously represented by counsel, but after discovery closed and the court denied the parties’ 21 | cross-motions for summary judgment in part, the court appointed Chijioke Ikonte as pro bono 22 | counsel and set a final pretrial conference. See F&Rs, ECF No. 102; Order Adopting F&Rs, 23 | ECF No. 122; Order Appointing Counsel, ECF No. 123; Order Setting Final Pretrial Conference, 24 | ECF No. 124. 25 After Mr. Ikonte was appointed, he began speaking to Mr. Dixon and reviewing the 26 | record. See Ikonte Decl. {J 2-4, ECF No. 125. He discovered that Mr. Dixon had not obtained 27 | discovery “on a number of vital matters.” Mot. at 4, ECF No. 125. For example, the defendant 28 | officer has not been deposed. See id. Nor have any of the other officers who witnessed the 1 incident or prepared written reports been deposed. See id. The California Department of 2 Corrections and Rehabilitation has a video of the incident, but Mr. Dixon does not have a copy. 3 See id. at 5. Mr. Ikonte also believes it will be necessary to consult with an expert on excessive 4 force, but no expert discovery has occurred. See id. at 4–5. He attributes these gaps in the record 5 to Mr. Dixon’s limited resources and lack of counsel and to the obstacles an untrained, 6 incarcerated person must surmount when contacting witnesses, seeking documents, and 7 scheduling and taking depositions. See Ikonte Decl. ¶ 5. 8 Mr. Ikonte filed a motion to reopen discovery on Mr. Dixon’s behalf. See generally Mot. 9 The court directed the parties to meet and confer with the goal of reaching an agreement that 10 would moot Mr. Dixon’s motion. Order, ECF No. 126. The parties’ efforts to meet and confer 11 were unsuccessful. See Joint Rep., ECF No. 127. The defense believes too much time has passed 12 since the incident and argues discovery would not reveal any relevant information. See id. at 2–3. 13 It opposes the motion on that basis. See generally Opp’n, ECF No. 128. 14 “When ruling on a motion to amend a Rule 16 scheduling order to reopen discovery,” the 15 Ninth Circuit has “instruct[ed] district courts to consider the following factors”: 16 “1) whether trial is imminent, 2) whether the request is opposed, 17 3) whether the non-moving party would be prejudiced, 4) whether 18 the moving party was diligent in obtaining discovery within the 19 guidelines established by the court, 5) the foreseeability of the need 20 for additional discovery in light of the time allowed for discovery by 21 the district court, and 6) the likelihood that the discovery will lead to 22 relevant evidence.” 23 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (quoting United 24 States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995), vacated on 25 other grounds, 520 U.S. 939 (1997)). 26 Here, no trial is imminent. No trial date has been set. The court is satisfied Mr. Dixon 27 sought discovery as diligently as can reasonably be expected of an unrepresented, incarcerated 28 plaintiff proceeding in forma pauperis; his successful attempt to oppose summary judgment 29 supports that conclusion. Reopening discovery also will lead to the disclosure of relevant 30 evidence, such as deposition testimony by the defendant and other eyewitnesses and a video of 1 the allegedly excessive force. This evidence will shed light on the central factual disputes in this 2 case: What were the defendant’s true reasons for the force he used? What was most important at 3 the time, discipline or protecting himself? And did the defendant have reasonable alternatives for 4 achieving his goals? See F&Rs at 24. Although several years have passed since the events 5 alleged in Mr. Dixon’s complaint, denying the motion would cause much greater prejudice to 6 Mr. Dixon than granting the motion will cause to the defendant. 7 The motion to reopen discovery is granted. A status conference is set for December 2, 8 2021 at 2:30 p.m. before the undersigned. By November 18, 2021, the parties shall submit a 9 joint report proposing a schedule for reopened discovery, other pretrial proceedings, a final 10 pretrial conference and trial. 11 IT IS SO ORDERED. 12 DATED: November 9, 2021.