(PC) Hammler v. Lyons ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 1:19-cv-01650-AWI-GSA-PC 12 Plaintiff, ORDER GRANTING DEFENDANT’S EX PARTE APPLICATION TO MODIFY 13 vs. SCHEDULING ORDER (ECF No. 54.) 14 J. LYONS, et al., ORDER EXTENDING DEADLINES 15 Defendants. New Deadlines 16 Filing of exhaustion motions: April 29, 2022 17 Discovery (limited): May 17, 2022 Filing of dispositive motions: July 1, 2022 18 19 20 21 I. BACKGROUND 22 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 24 First Amended Complaint filed on April 3, 2019, against defendant A. Lucas (Appeals 25 Coordinator) (“Defendant”) for violation of freedom of speech under the First Amendment.1 26 (ECF No. 12.) 27 28 1 On July 27, 2021, the court dismissed all other claims from this case based on Plaintiff’s failure to state a claim. (ECF No. 36.) 1 On August 26, 2021, the court issued a Discovery and Scheduling Order establishing 2 pretrial deadlines for the parties, including a deadline of November 26, 2021 for filing exhaustion 3 motions. (ECF No. 41.) On November 22, 2021, the court extended the exhaustion motions 4 filing deadline to January 10, 2022. (ECF No. 47.) On January 4, 2022, The court extended the 5 exhaustion motions filing deadline to February 28, 2022. (ECF No. 50.) On January 28, 2022, 6 the court extended the discovery deadline for the limited purpose of taking Plaintiff’s deposition, 7 to March 18, 2022. (ECF No. 52.) 8 On February 25, 2022, Defendant Lucas filed an ex parte application to modify the 9 deadlines in the Discovery and Scheduling Order. (ECF No. 54.) 10 II. MOTION TO MODIFY SCHEDULING ORDER 11 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 12 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 13 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 14 modification of a scheduling order must generally show that even with the exercise of due 15 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 16 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 17 order fails to show due diligence the inquiry should end and the court should not grant the motion 18 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 19 The court finds good cause to grant Defendant’s ex parte application and extend the 20 exhaustion motions filing deadline from February 28, 2022 to April 29, 2022; the discovery 21 deadline, for the limited purpose of taking Plaintiff’s deposition, from March 18, 2022 to May 22 17, 2022; and the non-exhaustion dispositive motions deadline from March 26, 2022 to July 1, 23 2022. Defendant has shown that even with the exercise of due diligence he cannot meet the 24 requirements of the court’s Scheduling Order. Therefore, Defendant’s motion to modify the 25 Discovery and Scheduling Order shall be granted. 26 /// 27 /// 28 /// 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. Defendant’s ex parte application to modify the court’s Discovery and Scheduling 4 Order, filed on February 25, 2022, is GRANTED; 5 2. The deadline for filing exhaustion motions is extended from February 28, 2022 to 6 April 29, 2022; 7 3. The deadline for completing discovery, for the limited purpose of taking 8 Plaintiff’s deposition, is extended from March 18, 2022 to May 17, 2022; 9 4. The deadline for filing non-exhaustion dispositive motions, is extended from 10 March 26, 2022 to July 1, 2022; and 11 5. All other provisions of the court’s August 26, 2021 Discovery and Scheduling 12 Order remain the same. 13 IT IS SO ORDERED. 14 15 Dated: March 1, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28