(PC) Smith v. Gonzales ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, 1:17-cv-00436-DAD-GSA (PC) 12 Plaintiff, ORDER GRANTING PARTIES’ MOTIONS TO MODIFY THE SCHEDULING ORDER 13 v. (ECF Nos. 80, 83, 84.) 14 J. GONZALES, et al., ORDER EXTENDING DISCOVERY DEADLINE AND DEADLINE TO FILE 15 Defendants. DISPOSITIVE MOTIONS FOR ALL PARTIES 16 New Discovery Deadline: October 31, 2020 New Dispositive Motions Deadline: December 31, 2020 17 18 19 20 21 I. BACKGROUND 22 Larry Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 23 this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s First 24 Amended Complaint filed on June 23, 2017, against defendants Sergeant Gonzales, Correctional 25 Officer (C/O) Johnson, C/O Castro, C/O Miner C/O Florez, and C/O Potzernitz for use of excessive 26 force in violation of the Eighth Amendment; against defendant C/O Scaife for failure to protect 27 Plaintiff in violation of the Eighth Amendment; and against defendant Sergeant Gonzales for 28 retaliation in violation of the First Amendment. (ECF No. 12.) 1 On February 4, 2019, the court issued a Discovery and Scheduling Order establishing 2 deadlines for the parties, including a discovery deadline of August 4, 2019 and a dispositive 3 motions deadline of October 4, 2019. (ECF No. 33.) The deadlines have been extended more than 4 once during the pendency of this action. 5 Most recently, on April 30, 2020, the court extended the discovery deadline to July 20, 6 2020, and the dispositive motions deadline to September 20, 2020 for all parties. (ECF No. 77.) 7 On June 11, 2020, Defendants filed a motion to modify the scheduling order. (ECF No. 8 80.) On July 16, 2020, Plaintiff filed a motion to modify the scheduling order. (ECF No. 83.) On 9 July 17, 2020, Defendants filed another motion to modify the scheduling order. (ECF No. 84.) 10 II. MOTION TO MODIFY SCHEDULING ORDER 11 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), 12 and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 13 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a 14 scheduling order must generally show that even with the exercise of due diligence, they cannot 15 meet the requirement of the order. Id. The court may also consider the prejudice to the party 16 opposing the modification. Id. If the party seeking to amend the scheduling order fails to show 17 due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic 18 v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 19 Defendants request extensions of the discovery deadline and dispositive motions deadline, 20 due to limitations on inmate movements resulting from the COVID-19 pandemic that preclude 21 Defendants from taking Plaintiff’s deposition. Plaintiff requests extensions of the same deadlines 22 to allow additional time to meet the court’s discovery deadline, because his thousands of pages of 23 documents were mixed together during transfer from another prison. 24 The court finds good cause to modify the scheduling order based on the parties’ requests. 25 Plaintiff and Defendants have shown that even with the exercise of due diligence, they cannot meet 26 the requirements of the court’s order. Therefore, the parties’ motions shall be granted. 27 /// 28 /// 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Defendants’ motions to modify the court’s Scheduling Order, filed on June 11, 2020 4 and July 17, 2020, are GRANTED; 5 2. Plaintiff’s motion to modify the court’s Scheduling Order, filed on July 16, 2020, is 6 GRANTED; 7 3. The deadline for the completion of discovery is extended from July 20, 2020 to 8 October 31, 2020 for all parties to this action; 9 4. The deadline for filing and serving pretrial dispositive motions is extended from 10 September 20, 2020 to December 31, 2020 for all parties to this action; and 11 5. All other provisions of the court’s February 4, 2019 Discovery and Scheduling 12 Order remain the same. 13 IT IS SO ORDERED. 14 15 Dated: July 22, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28