(PC) Reyes v. Valley State Prison ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JOSE REYES, 1:20-cv-00023-ADA-GSA-PC 8 Plaintiff, ORDER GRANTING DEFENDANTS’ EX 9 vs. PARTE APPLICATION TO VACATE DEADLINES PENDING RESOLUTION OF 10 VALLEY STATE PRISON, et al., MOTIONS 11 Defendants. (ECF No. 42.) 12 Deadlines Vacated: 13 To file exhaustion motions – April 1, 2023 14 To conduct discovery -- June 1, 2023 To file dispositive motions – August 1, 2023 15 16 I. BACKGROUND 17 Plaintiff Jose Reyes is a state prisoner proceeding pro se and in forma pauperis with this 18 civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the Fourth 19 Amended Complaint filed by Plaintiff on November 9, 2022, against Defendant Moosbauer for 20 retaliation; and against Defendants Moosbauer and Fisher for RLUIPA violations, First 21 Amendment Free Exercise Clause violations, and an Eighth Amendment Failure to Protect 22 Plaintiff violation. (ECF Nos. 34, 36.) 23 On December 1, 2022, the Court issued its Discovery and Scheduling Order establishing 24 a deadline of April 1, 2023 to file exhaustion motions; a deadline of June 1, 2023 to conduct 25 discovery and file motions to compel; and, a deadline of August 1, 2023 to file dispositive 26 motions. (ECF No. 38.) 27 On March 13, 2023, Defendants Fisher and Moosbauer (“Defendants”) filed an ex parte 28 application to vacate the deadlines pending the resolution of two motions. (ECF No. 42.) 1 II. MOTION TO MODIFY SCHEDULING ORDER 2 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 3 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 4 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 5 modification of a scheduling order must generally show that even with the exercise of due 6 diligence, they cannot meet the requirements of the order. Id. The court may also consider the 7 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 8 order fails to show due diligence the inquiry should end and the court should not grant the motion 9 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 10 Defendants request that the Court vacate the April 1, 2023 exhaustion motion filing 11 deadline; the June 1, 2023 discovery deadline (and all other deadlines based on that deadline); 12 and the August 1, 2023 dispositive motion filing deadline, pending the resolution of two motions: 13 (1) Defendants’ motion for an order revoking Plaintiff’s in forma pauperis status (ECF No. 40), 14 and (2) Defendants’ motion to compel responses to Defendant Moosbauer’s interrogatories (ECF 15 No. 41). 16 In the first motion, Defendants request that because Plaintiff has been released from 17 custody, Plaintiff be ordered to pay the filing fee or submit a new in forma pauperis application, 18 and that the case be dismissed if he fails to do so. Defendants contend that resolution of that 19 motion could obviate the need for further litigation. 20 In the second motion, Defendants seek to compel Plaintiff to serve responses to Defendant 21 Moosbauer’s interrogatories. (ECF No. 41.) Defendants expect information in the 22 interrogatories regarding Plaintiff’s alleged exhaustion of remedies, for a motion for summary 23 judgment on that issue. To date, Plaintiff has not responded to the interrogatories, and 24 Defendants have been unable to contact Plaintiff at his addresses of record. Defense counsel 25 states that he is not aware of a direct telephone number or e-mail address at which Plaintiff can 26 be contacted. 27 The Court finds good cause to vacate the deadlines in the Court’s Discovery and 28 Scheduling Order as requested by Defendants. Therefore, the motion to modify the Scheduling 1 Order, filed by Defendants on March 13, 2023, shall be granted. The Court shall vacate the 2 deadlines for filing exhaustion motions, conducting discovery and filing motions to compel, and 3 filing dispositive motions, pending the resolution of Defendants’ motion to revoke Plaintiff’s in 4 forma pauperis status, filed on March 8, 2023, and Defendants’ motion to compel filed on March 5 13, 2023, with new deadlines to be set, if needed, upon resolution of the motions. 6 III. CONCLUSION 7 Based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that: 8 1. Defendants’ motion to modify the Court’s Discovery and Scheduling Order, filed 9 on March 13, 2023, is GRANTED; 10 2. The deadlines for filing exhaustion motions, conducting discovery and filing 11 motions to compel, and filing dispositive motions are vacated pending the 12 resolution of Defendants’ motion to revoke Plaintiff’s in forma pauperis status, 13 filed on March 8, 2023, and Defendants’ motion to compel filed on March 13, 14 2023; 15 3. If needed after the resolution of Defendants’ pending motion to revoke Plaintiff’s 16 in forma pauperis status, and Defendants’ pending motion to compel, the Court 17 shall set new deadlines for filing exhaustion motions, conducting discovery and 18 filing motions to compel, and filing dispositive motions; and 19 4. All other provisions of the Court’s December 1, 2022 Discovery and Scheduling 20 Order remain the same. 21 IT IS SO ORDERED. 22 23 Dated: May 2, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28