(PC) Rivas v. Williams ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL J. RIVAS, Case No. 1:19-cv-00328-BAM (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ SECOND MOTION TO MODIFY THE 13 v. DISCOVERY AND SCHEDULING ORDER 14 WILLIAMS, et al., (ECF No. 33) 15 Defendants. Exhaustion Motion Deadline: January 4, 2021 16 17 Plaintiff Daniel J. Rivas (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 19 Defendants Williams and Garcia for deliberate indifference to a serious medical need in violation 20 of the Eighth Amendment. All parties have consented to United States Magistrate Judge 21 jurisdiction. (ECF Nos. 6, 24.) 22 Pursuant to the Court’s July 22, 2020 Discovery and Scheduling Order, and October 22, 23 2020 order granting Defendants’ motion to modify the Discovery and Scheduling Order, the 24 deadline for filing motions for summary judgment for failure to exhaust administrative remedies 25 is December 4, 2020. (ECF Nos. 28, 32.) 26 Currently before the Court is Defendants’ December 4, 2020 second motion to modify the 27 discovery and scheduling order to extend the deadline to file a motion for summary judgment for 28 failure to exhaust administrative remedies until January 4, 2021. (ECF No. 33.) Although 1 Plaintiff has not had an opportunity to respond to the motion, the Court finds a response 2 unnecessary and the motion is deemed submitted. Local Rule 230(l). 3 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and 4 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily 5 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, 6 Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot 7 reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was 8 not diligent, the inquiry should end. Id. 9 Defense counsel states that good cause exists to modify the scheduling order because 10 Defendants have been diligently preparing their motion for summary judgment based on 11 exhaustion grounds, but still require additional time to complete that motion. (ECF No. 33.) 12 Defense counsel’s caseload has taken necessary time away from the full preparation of 13 Defendants’ motion for summary judgment, despite her continued efforts to complete the motion 14 after the Court’s first extension of the deadline. Defendants request that the current deadline be 15 extended by an additional thirty days, and that all other deadlines remain in place. (Id.) 16 Having considered Defendants’ request, the Court finds good cause to continue the 17 exhaustion motion deadline in this action. The Court finds that Plaintiff will not be prejudiced by 18 the brief extension requested here, and it will not result in a delay in the prosecution of this case 19 as all other deadlines will remain in place. 20 Based on the foregoing, Defendants’ second motion to modify the discovery and 21 scheduling order, (ECF No. 33), is HEREBY GRANTED. Motions for summary judgment for 22 failure to exhaust administrative remedies shall be filed on or before January 4, 2021. 23 IT IS SO ORDERED. 24 25 Dated: December 7, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28