(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 MOTION FOR EXTENSION OF 13 vs. TIME TO RESPOND TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S 14 J. LYONS, et al., MOTION FOR TERMINATING AND MONETARY SANCTIONS 15 Defendants. DEADLINE FOR DEFENDANT TO 16 FILE OPPOSITION: JUNE 10, 2022 17 ORDER GRANTING DEFENDANT’S MOTION TO MODIFY THE SCHEDULING 18 ORDER AS DISCUSSED IN THIS ORDER 19 (ECF No. 65.) 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 May 20, 2022, Defendant Lucas filed an ex-parte request for an extension of time to 2 reply to Plaintiff’s opposition to Defendant’s motion for terminating and monetary sanctions. 3 (ECF No. 65.) Defendant also filed a motion to modify the Court’s Discovery and Scheduling 4 Order. (Id.) 5 II. REQUEST FOR EXTENSION OF TIME 6 Defendant Lucas requests an extension of time to reply to Plaintiff’s opposition to 7 Defendant’s motion for terminating and monetary sanctions filed on March 4, 2022. Defendant 8 Declares that COVID-19 related restrictions, including limitation to inmate and staff movement, 9 and severely reduced staffing availability at correctional institutions across California, including 10 California State Prison, Sacramento (CSP-SAC), where Plaintiff is currently housed, resulted in 11 delays in obtaining the necessary documents and declarations. (Id. ¶ 4.) Good cause appearing, 12 Defendant’s request shall be granted until June 10, 2022. 13 III. MOTION TO MODIFY SCHEDULING ORDER 14 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 15 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 16 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 17 modification of a scheduling order must generally show that even with the exercise of due 18 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 19 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 20 order fails to show due diligence the inquiry should end and the court should not grant the motion 21 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 22 Defendant requests an extension of time to depose Plaintiff and to file a dispositive 23 motion. Defendant declares that she intends to depose Plaintiff and that she attempted to conduct 24 the deposition on January 21, 2022, but was unsuccessful because Plaintiff stood up and walked 25 out of the room as she was speaking to him. (Decl. Deft., ECF No. 65 ¶ 5.) 26 Defendant requests that the Court allow her to depose Plaintiff thirty days from the date 27 of an order denying Defendant’s Motion for Summary Judgment on NonExhaustion, or an order 28 denying Defendant’s Motion for Terminating and Monetary Sanctions, whichever is later. 1 Defendant also requests that the court extend the deadline to file a dispositive motion another 2 sixty days from the deadline to depose Plaintiff. 3 Presently discovery is closed in this case and the deadline to file dispositive motions is 4 July 1, 2022. Defendant’s pending motion for summary judgment has been fully briefed and 5 submitted to the court. Local Rule 230(l). The court finds good cause to extend the deadlines in 6 this case. After Defendant’s motion for terminating sanctions has been fully briefed and 7 submitted to the court, the proceedings in this case shall be stayed until after both of Defendant’s 8 pending motions have been resolved. After Defendant’s motions have been resolved, the court 9 shall issue a new scheduling order, if needed. 10 IV. CONCLUSION 11 Based on the foregoing, IT IS HEREBY ORDERED that: 12 1. Defendant’s ex-parte motion for an extension of time and motion for modification 13 of the Court’s scheduling order, filed on May 20, 2022, are GRANTED; 14 2. Defendant is granted an extension of time until June 10, 2022 in which to respond 15 to Plaintiff’s opposition to Defendant’s motion for terminating and monetary 16 sanctions filed on March 4, 2022; 17 3. After Defendant’s motion for terminating and monetary sanctions has been fully 18 briefed and submitted to the court, the proceedings in this case shall be stayed 19 until after both of Defendant’s pending motions have been resolved; and 20 4. After Defendant’s pending motions are resolved, the Court shall issue a new 21 scheduling order, if needed. 22 IT IS SO ORDERED. 23 24 Dated: June 1, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28