(PC) Hammler v. Lyons ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ALLEN HAMMLER, 1:19-cv-01650-AWI-GSA-PC 9 Plaintiff, ORDER GRANTING DEFENDANT’S EX PARTE APPLICATION TO MODIFY 10 vs. SCHEDULING ORDER (ECF No. 46.) 11 J. LYONS, et al., ORDER EXTENDING EXHAUSTION 12 Defendants. MOTIONS FILING DEADLINE FROM NOVEMBER 26, 2021 TO JANUARY 10, 13 2022 14 15 16 17 18 I. BACKGROUND 19 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 21 First Amended Complaint filed on April 3, 2019, against defendant A. Lucas (Appeals 22 Coordinator) for retaliation, and violation of freedom of speech under the First Amendment. 23 (ECF No. 12.) 24 On August 26, 2021, the court issued a Discovery and Scheduling Order establishing 25 pretrial deadlines for the parties, including a deadline of November 26, 2021 for filing exhaustion 26 motions. (ECF No. 41.) On November 17, 2021, Defendant Lucas filed an ex parte application 27 to modify the Discovery and Scheduling Order to extend the exhaustion motions filing deadline 28 to January 10, 2022. (ECF No. 46.) 1 II. MOTION TO MODIFY SCHEDULING ORDER 2 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 3 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 4 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 5 modification of a scheduling order must generally show that even with the exercise of due 6 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 7 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 8 order fails to show due diligence the inquiry should end and the court should not grant the motion 9 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 10 The court finds good cause to grant Defendant’s ex parte application and extend the 11 exhaustion motions filing deadline from November 26, 2021 to January 10, 2022. Defendant has 12 shown that even with the exercise of due diligence he cannot meet the requirements of the order. 13 Therefore, Defendant’s motion to modify the Scheduling Order shall be granted. 14 III. CONCLUSION 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Defendant’s ex parte application to modify the court’s Discovery and Scheduling 17 Order, filed on November 17, 2021, is GRANTED; 18 2. The deadline for the filing of exhaustion motions is extended from November 26, 19 2021 to January 10, 2022; and 20 3. All other provisions of the court’s August 26, 2021 Discovery and Scheduling 21 Order remain the same. 22 IT IS SO ORDERED. 23 24 Dated: November 21, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28