IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 22, 2009
MARK ANTHONY MORENO, PLAINTIFF,
D. MEDINA, ET AL., DEFENDANTS.
ORDER AND AMENDED SCHEDULE
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On September 18, 2009, defendants filed a motion to modify the June 9, 2009, scheduling order. Dckt. No. 42. Plaintiff has not filed an opposition.*fn1 However, he has filed a motion for an order directing prison officials to deliver his legal materials to him.*fn2 Dckt. No. 39. Defendants do not oppose that motion.
After defendants filed an answer to the complaint, the court issued a scheduling order stating that discovery could be conducted until no later than September 25, 2009, and dispositive motions had to be filed no later than December 18, 2009. Dckt. No. 36. Accordingly, on July 29, 2009, defendants notified plaintiff that they would take his deposition on Thursday, September 10, 2009, at California State Prison - Sacramento, where plaintiff recently had been transferred. Def.'s Mot., Decl. of Phillip A. Arthur,*fn3 ("Arthur Decl."), Ex. A. They also requested that plaintiff produce for inspection and copying a number of documents related to this action. Id. On August 25, 2009, plaintiff filed a motion for an extension of time to produce those materials because prison officials had confiscated them when they transferred him. Pl.'s Mot. for Ext. of Time, Dckt. No. 40-1; 40-2. Before this court ruled on his motion, plaintiff appeared for the deposition, but could not participate because he lacked access to his legal materials. Arthur Decl., at ¶ 3; see Pl.'s Mot. for Ext.. Thus, defendants' counsel has requested that the litigation coordinators involved in the transfer return plaintiff's legal materials by September 23, 2009. Arthur Decl., at ¶ 5. Defendants' counsel states that if plaintiff has his legal materials by this date, then he can depose plaintiff by the middle of October and file a dispsositive motion no later than January 29, 2010. See Def.'s Mot., at 4.
II. Defendants' Request to Modify the Schedule
Defendants request that the scheduling order be modified to permit them to take plaintiff's deposition no later than Octobe30, 2009, and to permit the filing of dispositive motions no later than January 29, 2010. As noted, plaintiff has not opposed this motion. The 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). Here, about two months before the close of discovery, defendants notified plaintiff that they would take his deposition nearly two weeks before the close of discovery. Plaintiff did not object to this time-frame until he realized that he would not have the documents defendants had requested. Even though this situation was not the fault of defendants, they took action to ensure that plaintiff's legal materials would be returned to him so that he could be prepared for deposition no later than September 23. These facts show that despite defendants' diligence, it was impossible for them to comply with the scheduling order. Accordingly, defendants have shown good cause under Rule 16(b) and their motion is granted.
Based on defendants' representation, the court accepts September 23, 2009, as the latest date plaintiff will receive his legal materials. Accordingly, defendants ought to be able to take his deposition by mid-October. Thus, it is reasonable to establish October 30, 2009, as the date for the close of discovery, and January 29, 2009, as the date by which dispositive motions must be filed.
III. Plaintiff's Request for the Return of his Legal Materials
Plaintiff requests an order directing prison officials to return his legal materials. Defendants do not oppose this motion. As stated above, they will take action to ensure that prison officials return those materials no later than September 23, 2009. Plaintiff has not provided evidence suggesting that they will not. Therefore, plaintiff's motion is denied without prejudice.
Accordingly, it hereby is ORDERED that:
1. Defendants' motion to modify the schedule is granted as follows:
a. Defendants shall complete plaintiff's deposition no later than October 30, 2009;
b. The parties shall file dispositive motions no later than January 29, 2010; and,
c. Other than these modifications, the scheduling order remains unchanged.
2. Plaintiff's motion for an order directing prison officials to return his legal materials is denied without prejudice.