(PC) Flowers v. County of Fresno ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DE’ANDRAE FLOWERS, Case No. 1:19-cv-01027-JLT-CDB (PC) 12 Plaintiff, ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST FOR ADDITIONAL 13 v. DISCOVERY AND GRANTING PLAINTIFF’S MOTION FOR ADDITIONAL TIME TO 14 TOON, et al., SUBSTITUTE DOE DEFENDANTS 15 Defendants. (ECF Nos. 64, 67) 16 FORTY-FIVE (45) DAY DEADLINE 17 ORDER GRANTING DEFENDANT’S 18 REQUEST NUNC PRO TUNC FOR MODIFICATION OF SCHEDULING ORDER 19 (ECF No. 65) 20 NINETY (90) DAY DEADLINE 21 22 Plaintiff Michael De’Andrae Flowers is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action filed under 42 U.S.C. § 1983. This action proceeds on Eighth 24 Amendment medical indifference claims against Defendant Toon (“Defendant”) and Does 1–3 25 raised in the first amended complaint. (ECF Nos. 14, 15, 21.) 26 I. DISCOVERY 27 The Court previously granted Plaintiff leave to issue subpoenas to discover the identities 28 of Does 1–3 and ordered Plaintiff to file a notice of substitution by June 24, 2022. (ECF Nos. 1 23, 37.) Upon motions by Plaintiff, the Court granted three extensions of this deadline through 2 October 24, 2022. (ECF Nos. 52, 56, 63.) 3 Plaintiff has filed a motion seeking to conduct additional discovery to make the 4 substitutions. (ECF No. 64.) Plaintiff states Defendant objected to his discovery requests1 5 because they are compound and exceed the fifteen-interrogatory limit. As grounds, Plaintiff 6 states only that he is a pro se litigant with limited resources and “additional discovery would be 7 very helpful.” (Id.) Defendant did not file a response in opposition. 8 In the scheduling order, the Court advised that the parties were each limited to fifteen 9 interrogatories, fifteen requests for production of documents, and fifteen requests for admission. 10 (ECF No. 55 at ⁋ I.2.) A pro se plaintiff is entitled to some leniency in making a showing of his 11 need for discovery. See O’Connor v. Perez, No. 2:18-cv-1057 DB P, 2020 WL 1030850, at *2 12 (E.D. Cal. Mar. 3, 2020) (citations omitted), recons. denied, No. 2:18-cv-1057 DB P, 2020 WL 13 6928651 (E.D. Cal. Sept. 1, 2020). Although a pro se litigant is not required to make a 14 “particularized showing” that he should be granted leave to propound additional 15 interrogatories, he must nonetheless demonstrate good cause. Brown v. Chothia, No. 1:19-cv- 16 00352-EPG (PC), 2020 WL 6060682, at *1 (E.D. Cal. Oct. 14, 2020) (citing McNeil v. Hayes, 17 No. 1:10-cv-01746-AWI-SKO (PC), 2014 WL 1125014, at *2 (E.D. Cal. Mar. 20, 2014); Fed. R. 18 Civ. P. 26(b)(1)). An incarcerated party’s highly limited ability to conduct a deposition in prison 19 may contribute to a finding of good cause to file additional interrogatories. Brown, 2020 WL 20 6060682, at *1 (citing McNeil, 2014 WL 1125014, at *2). 21 Here, Plaintiff has not attached to his motion the interrogatories propounded and 22 Defendant’s responses. Because the Court is unable to review this discovery, it cannot assess the 23 propriety of Defendants’ responses, whether good cause exists to grant Plaintiff leave to 24 propound additional interrogatories, or the availability of the information through other 25 discovery tools. Plaintiff has not met his burden to show good cause for additional discovery, 26 and thus, his motion is denied without prejudice. 27 28 1 Plaintiff does not specify what kind of discovery is at issue. The motion appears to concern 1 II. SUBSTITUTION OF DOE DEFENDANTS 2 Plaintiff has also requested additional time to substitute the Doe defendants. Plaintiff 3 states he requested “discovery of video of the doe defendants and has not received the request.” 4 (ECF No. 67.) Because the Plaintiff has again neglected to attach his discovery request, the 5 Court is unable to discern the nature of Plaintiff’s request and the adequacy of Defendant’s 6 response, if any. 7 However, because Plaintiff’s efforts were apparently hampered by his COVID-19 8 infection and a transfer to another institution, the Court will grant Plaintiff an additional thirty 9 days to substitute the Doe defendants with their actual names. 10 III. MODIFICATION OF SCHEDULING ORDER 11 Defendant has filed a motion seeking a ninety-day extension of the October 5, 2022, 12 deadline for filing a motion for summary judgment based on exhaustion. (ECF No. 65.) In 13 support of his request, Defendant submits the declaration of Richard E. Burchett Jr., counsel for 14 Defendant, who states he has been diligently investigating Plaintiff’s exhaustion of remedies at 15 the Fresno County Jail (“FCJ”). His efforts are impeded by extended absences of necessary 16 contacts at FCJ and a change of the healthcare contractor at FCJ. Moreover, because of his 17 inability to obtain historical data through the usual means, counsel foresees the necessity to 18 depose Plaintiff and propound written discovery related to the issue of exhaustion of remedies. 19 Defendant has made no prior requests for modification of the scheduling order, nor has 20 he objected to Plaintiff’s multiple requests for extensions of time. Plaintiff has not filed a 21 response in opposition to Defendant’s request, and modification of the scheduling order 22 accommodates Plaintiff’s request for additional time to discover and name the Doe defendants. 23 Therefore, Defendant’s request for an additional ninety days to file an exhaustion motion is 24 granted nunc pro tunc. 25 IV. CONCLUSION 26 Accordingly, IT IS HEREBY ORDERED: 27 1. Plaintiff’s motion for additional discovery (ECF No. 64) is DENIED without 28 prejudice. 1 2. Plaintiff's fourth motion for an extension of time to substitute the Doe defendants 2 | (ECF No. 67) is GRANTED nunc pro tunc. Within forty-five (45) days from the date of 3 | service of this order, Plaintiff shall file a notice of substitution that provides individual names for 4 | the Doe defendants. Failure to do so may result in a recommendation to dismiss the unidentified, 5 | unserved defendants. 6 3. Defendant’s motion for modification of the scheduling order (ECF No. 65) is 7 | GRANTED. Any motions based on non-exhaustion of administrative remedies must be filed 8 | within ninety (90) days from the date of service of this order. 9 No further extensions of time will be granted absent a showing of good cause. 10 | IT IS SOORDERED. Dated: _ November 15, 2022 | hr 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28