(PC) Scott v. Castillo ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARK A. SCOTT, 1:20-cv-00598-ADA-GSA-PC 11 Plaintiff, ORDER DENYING MOTION TO REOPEN DISCOVERY 12 vs. (ECF No. 39.) 13 CASTILLO, et al., 14 Defendants. 15 16 17 18 19 I. BACKGROUND 20 Mark Anthony Scott (“Plaintiff”) is a Kings County Jail inmate proceeding pro se and in 21 forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case, filed on 22 April 27, 2020, now proceeds against defendant C/O Castillo for use of excessive force in 23 violation of the Eighth Amendment.1 (ECF Nos. 1, 18 & 19.) 24 On March 1, 2022, the court issued a Discovery and Scheduling Order establishing 25 pretrial deadlines for the parties, including a discovery deadline of August 1, 2022 and a 26 1 On November 16, 2021, the Court issued an order for this case to proceed only with 27 Plaintiff’s excessive force claims against defendant C/O Castillo, and dismissing all other claims and 28 defendants. (ECF No. 19.) 1 dispositive motion filing deadline of October 1, 2022. (ECF No. 26.) On December 9, 2022, the 2 Court granted Defendant’s motion to modify the scheduling order and extended the discovery 3 deadline to March 12, 2023 and the dispositive motion filing deadline to April 12, 2023. (ECF 4 No. 33.) All of these deadlines have now expired. 5 On April 19, 2023, Plaintiff filed a motion to reopen discovery for 90 days. (ECF No. 6 39.) On May 11, 2023, Defendant filed an opposition to the motion. (ECF No. 43.) Plaintiff 7 has not filed a reply, and the time in which to do so has expired. Local Rule 230(l). 8 II. MOTION TO MODIFY SCHEDULING ORDER 9 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 10 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 11 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 12 modification of a scheduling order must generally show that even with the exercise of due 13 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 14 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 15 order fails to show due diligence the inquiry should end and the court should not grant the motion 16 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 17 A. Plaintiff’s Motion 18 Plaintiff requests that discovery be reopened for 90 days because he is incarcerated and 19 has limited access to the material needed to respond to discovery. Plaintiff also seeks more time 20 to obtain documents from Defendant that are crucial in proving his case. 21 B. Defendant’s Opposition 22 Defendant argues that Plaintiff’s motion to reopen discovery should be denied based on 23 Plaintiff’s failure to show good cause. Defendant argues that Plaintiff was not diligent in 24 pursuing discovery and has not explained why he failed to serve timely discovery requests and 25 responses during two separate three-month discovery windows. Moreover, Defendant argues 26 that reopening discovery at this late date would prejudice Defendant. 27 Pursuant to the Court’s Discovery and Scheduling Order of December 9, 2022, all 28 discovery requests were to be served on or before June 1, 2022, which allowed Plaintiff three 1 months to serve discovery. (ECF No. 26.) On July 28, 2022, Plaintiff served untimely requests 2 for production of documents and special interrogatories, to which Defendant served objections 3 on the basis that the discovery requests were improper, untimely, and in violation of the Court’s 4 Scheduling Order. (Decl. of M. Stohl ¶¶ 2, 3; exhibits A and B.) 5 On December 9, 2022, the Court granted Defendant’s Motion to Modify the Scheduling 6 Order and extended the discovery deadline for an additional 90 days to March 12, 2023.2 (ECF 7 No. 33.) As a result, there were a total of six months for Plaintiff to serve timely discovery, but 8 he did not use any of that time. Defendant asserts that even though Plaintiff had previously 9 drafted discovery requests, Plaintiff failed to serve those requests during the three-month 10 discovery extension. 11 C. Discussion 12 Plaintiff has not demonstrated that with due diligence he could not have completed 13 discovery by the March 12, 2023 deadline. Plaintiff has not adequately explained, other than his 14 statement that he is incarcerated with limited access to material, as to why exactly he could not 15 complete his discovery requests and responses within the time allowed. Moreover, reopening 16 the discovery phase of this action would almost certainly delay the trial in this case which was 17 filed more than three years ago and should not be delayed further. Therefore, Plaintiff’s motion 18 to reopen discovery, filed on April 19, 2023, shall be denied. 19 III. CONCLUSION 20 Based on the foregoing and Plaintiff’s failure to show good cause, IT IS HEREBY 21 ORDERED that Plaintiff’s motion to reopen discovery, filed on April 19, 2023, is DENIED. 22 IT IS SO ORDERED. 23 24 Dated: June 2, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2 The modification requested by defense counsel was due to deposition scheduling issues related to defense counsel’s father’s unexpected passing. (ECF No. 32 at 3:14.)