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Wyatt v. City of Chico Police Dep't

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 27, 2009

VICTOR WYATT, PLAINTIFF,
v.
CITY OF CHICO POLICE DEPT. ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He requests that the court stay all proceedings so that he can complete discovery. The request is not entirely clear, but it appears plaintiff is asking for more time to complete discovery. The court's April 29, 2008 scheduling order set August 29, 2008, as the date by which discovery must be completed. Therefore, the court construes plaintiff's motion as one to modify that scheduling order.

A scheduling order may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Plaintiff asserts that he could not timely complete discovery because his legal materials have been withheld from him. Plaintiff does not explain how this prevented him from participating in discovery. Rather, plaintiff states that he prepared discovery-related documents as early as May 27, 2008. However, plaintiff mailed these documents to a lawyer who, on August 8, 2008, responded to plaintiff that she was unable to assist him with his case. Plaintiff does not describe any efforts to retrieve the documents that he inadvertently mailed, nor does he describe any efforts to redraft such documents. Without such explanation, the court cannot find that he exercised diligence. Plaintiff fails to demonstrate he was unable to meet the deadline despite due diligence.

In the same filing, plaintiff also requests that the court appoint an expert witness on his behalf. The expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma pauperis statute does not authorize the expenditure of public funds for expert witnesses. See 28 U.S.C. § 1915.

Accordingly, it is hereby ORDERED that plaintiff's September 3, 2008, request is denied.

20090127

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