(PC) Ayala v. Redman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS GARCIA AYALA, No. 2:21-cv-02186-DJC-CKD P 12 Plaintiff, 13 v. ORDER 14 GARY REDMAN, et al., 15 Defendants. 16 17 Plaintiff is a former county inmate currently in state custody who is proceeding pro se and 18 in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending 19 before the court are plaintiff’s motion to amend his complaint as well as a motion to modify the 20 discovery and scheduling order that was entered on April 17, 2023. ECF Nos. 57-58, 60. 21 Defendants have filed statements of non-opposition to both motions. ECF Nos. 59, 63. 22 Following screening of the second amended complaint, plaintiff was given the option of 23 proceeding on his Fourteenth Amendment excessive force claims against defendants La Barbera 24 and Creach, or of amending his complaint to fix the deficiencies with the Eighth Amendment 25 deliberate indifference to his serious medical needs claim stemming from the use of force against 26 him on October 21, 2021. ECF No. 41. Plaintiff elected to proceed on the Fourteenth 27 Amendment claims found cognizable and to voluntarily dismiss the putative Eighth Amendment 28 claim. ECF No. 42. As a result, defendants La Barbera and Creach were served and a discovery 1 and scheduling order was issued. 2 Plaintiff’s motion to amend the complaint was constructively filed on July 24, 2023.1 The 3 court notes that no proposed amended complaint was filed with the motion. However, the motion 4 requests an extension of time to file an amended complaint in this case. In light of plaintiff’s pro 5 se status, the court will not deny plaintiff’s motion based on this procedural flaw. The motion 6 also indicates that plaintiff has limited English language skills and is suffering from both physical 7 and mental health issues. ECF No. 60. Furthermore, defendants do not oppose plaintiff’s motion 8 to amend the complaint. ECF No. 63. In light of the foregoing, the court will grant plaintiff’s 9 motion to amend his complaint to attempt to cure the defects with the Eighth Amendment 10 deliberate indifference claim. See Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that leave to 11 amend “shall be freely given when justice so requires.”). Plaintiff may file a third amended 12 complaint within 30 days from the date of this order limited to claims arising from his 13 incarceration at the Amador County Jail on October 21, 2021. 14 Plaintiff has also filed motions to modify the discovery and scheduling order in this case 15 because they cannot be complied with based on his limited English language skills. ECF Nos. 16 57-58. Defendants have filed a statement of non-opposition to this motion as well. ECF No. 59. 17 Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order “may be 18 modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). This good 19 cause standard “primarily considers the diligence of the party seeking the amendment.” Johnson 20 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the 21 scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the 22 extension.” Id. If the party was not diligent, the inquiry should end. Id. In this case, there is no 23 indication in the record that plaintiff has not been diligent. Therefore, the court will grant 24 plaintiff’s motion to modify the scheduling order in this case. 25 ///// 26 ///// 27 1 The filing date was calculated using the prison mailbox rule. See Houston v. Lack, 487 U.S. 28 266 (1988). ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion to amend the complaint (ECF No. 60) is granted, limited to claims 3 arising from plaintiff's incarceration at Amador County Jail on October 21, 2021. 4 2. Plaintiff may file a third amended complaint within 30 days from the date of this 5 order. 6 3. Plaintiff's motions to modify the discovery and scheduling order (ECF Nos. 57-58) are 7 also granted. 8 4. All pending deadlines in this case are hereby vacated and will be reset as necessary 9 following the screening of plaintiff's third amended complaint. 10 5. If plaintiff fails to file a third amended complaint within the time provided, the court 11 will reset the discovery and dispositive motions deadlines limited to the Fourteenth 12 Amendment excessive force claims against defendants La Barbera and Creach. 13 | Dated: October 11, 2023 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 || 12/ayal2186.amend+modifyDSO 23 24 25 26 27 28