(PC) Washington v. Hicks ( 2022 )

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 DEFENDANT HICKS’S MOTION TO MODIFY 13 vs. DISCOVERY AND SCHEDULING ORDER (ECF No. 87.) 14 HICKS, et al., ORDER EXTENDING DEADLINES FOR 15 Defendants. DISCOVERY AND THE FILING OF DISPOSITIVE MOTIONS FOR ALL 16 PARTIES 17 New Discovery Deadline: 03/31/22 18 New Dispositive Motions Deadline: 05/31/22 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.) The current discovery deadline is December 6, 2021, 4 and the current dispositive motions deadline is February 26, 2022. (ECF No. 36.) 5 On January 14, 2022, defendant Hicks filed a motion to modify the court’s Discovery and 6 Scheduling Order. (ECF No. 87.) 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 Defendant Hicks brings a motion to extend the deadlines in the Discovery and Scheduling 17 Order to dates deemed appropriate following resolution of all pending discovery issues in this 18 case. Pursuant to recent orders, Plaintiff’s responses to discovery requests are due on February 19 7, 2022, and the deadline for filing dispositive motions is February 6, 2022. Defendant Hicks 20 argues that he will be prejudiced if the deadline for filing dispositive motions is not continued to 21 permit receipt of written discovery responses from Plaintiff. 22 The court finds good cause to extend the discovery and dispositive motions deadlines in 23 the court’s Discovery and Scheduling order. Defendant Hicks has shown that even with the 24 exercise of due diligence he cannot meet the requirements of the court’s Discovery and 25 Scheduling Order. Therefore, the motion to modify the Discovery and Scheduling Order filed 26 by defendant Hicks shall be granted. 27 /// 28 /// 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Defendant Hicks’s motion to modify the court’s Discovery and Scheduling Order, 4 filed on January 14, 2022 is GRANTED; 5 2. The deadline for the completion of discovery is extended from December 6, 2021 6 to March 31, 2022 for all parties to this action; 7 3. The deadline for filing and serving pretrial dispositive motions is extended from 8 February 26, 2022 to May 31, 2022 for all parties to this action; and 9 4. All other provisions of the court’s December 8, 2020 Discovery and Scheduling 10 Order remain the same. 11 IT IS SO ORDERED. 12 13 Dated: January 18, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28