The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO MODIFY SCHEDULING ORDER
Plaintiff Bryan Ransom ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding with Plaintiff's first amended complaint, filed June 26, 2006, on Plaintiff's retaliation claim against Defendant Rojas ("Defendant"). (Doc. 9.)
On October 26, 2009, Defendant filed a motion for summary judgment. (Doc. 43.) Plaintiff has not filed an opposition to the motion for summary judgment.
On January 29, 2010, Plaintiff filed a motion for the court to issue a new scheduling order in this action. (Doc. 44.) On February 19, 2010, Defendant filed an opposition to Plaintiff's motion. (Doc. 46.) On March 22, 2010, Plaintiff filed a reply to the opposition. (Doc. 47.) Plaintiff's motion is now before the court.
II. MODIFICATION OF SCHEDULING ORDER
A court may modify a scheduling order for good cause. Fed.R.Civ.P 16(b)(4). This good cause standard "primarily considers the diligence of the party seeking the amendment."Johnson v. Mammoth Recreations, Inc., 975 F2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling order must generally show that even with the exercise of due diligence, they cannot meet the requirement of the order. Id.
Plaintiff requests the court to issue a new scheduling order in this action, re-opening discovery, allowing Plaintiff additional time to amend the complaint, and extending time for the filing of pretrial dispositive motions and responses. Plaintiff claims that his medical condition prevented him from adhering to the deadlines established in the court's scheduling order whose deadlines have expired. Specifically, Plaintiff claims he was diagnosed with Hepatitis C and by March 13, 2009, he had developed debilitating pain in his joints impeding his ability to write. Plaintiff asserts that he requested appointment of counsel on March 13, 2009, with the assistance of another inmate, explaining his medical condition, and the request for counsel was denied. Plaintiff claims he requested assistance from prison staff members with writing legal documents, but he was informed that such assistance "exceeds the duties of CDCR staff." Plaintiff contends he was therefore unable to litigate his cases or meet deadlines. Plaintiff claims he has recently begun to regain use of his hands. In support of his motion, Plaintiff submits copies of medical records as evidence that he was diagnosed with chronic Hepatitis, was prescribed medications, and complained of hand pain. For these reasons, Plaintiff requests a new scheduling order giving him additional time to amend his complaint, complete discovery, and file dispositive motions and responses.
In opposition, Defendant argues that Plaintiff's motion is untimely, he fails to show good cause for his unreasonable delay, and he presents no evidence showing how and to what extent his medical condition affected his ability to prosecute his case. Defendant argues that Plaintiff has not submitted any evidence showing the frequency and intensity of his pain, the effects his condition had on his ability to write or type, or that his pain level or its debilitating effects were constant throughout the year. Further, Defendant contends that Plaintiff submitted no medical evidence to substantiate his claim. Defendant further argues that Plaintiff's record of filing documents in this and other cases since March 13, 2009, does not support his claim of incapacity. Defendant provides examples of numerous documents on the court's record filed by Plaintiff in his own handwriting, between March 25, 2009 and September 21, 2009.
In reply, Plaintiff argues that his medical condition prevented him from requesting a new scheduling order before now. Plaintiff concedes that he should have documented his medical condition and treatment better than he did. He now submits copies of prison records as evidence that he was issued and ordered to wear wrist braces on both hands in August 2009, continued to complain of chronic wrist and finger pain and stiffness in September 2009, and was prescribed a course of medication in September 2009 with increased dosage in October 2009. With regard to legal documents filed by Plaintiff between February 2009 and February 2010, Plaintiff contends that he "diligently did as much as he could" rather than "just [lying] down feeling sorry for himself."
Plaintiff's argument that his medical condition affected his ability to amend his pleadings, conduct discovery, file an opposition to Defendant's October 26, 2009 motion for summary judgment, or file a request for extension of the court's deadlines before now, is unavailing. Despite claims that he suffered from debilitating pain in his hands, wrists and joints by March 13, 2009, the court's record in Plaintiff's case 1:05-cv-00086-OWW-GSA-PC Ransom v. Johnson contains an eighteen-page opposition to a motion for summary judgment filed on May 14, 2009, written in the same distinctive handwriting used by Plaintiff throughout his many civil rights cases.*fn1 (Court Record in Johnson, Doc. 204.) Plaintiff also filed five other documents in Johnson between March 26, 2009 and May 14, 2009, all in his own handwriting. (Id., Docs. 189, 190, 191, 203, 205.) According to this record, Plaintiff's pain was not debilitating enough to prevent him from writing an eighteen-page opposition two months into the twelve-month period he claims he was so disabled he could not write. Despite Plaintiff's evidence that he suffers from Hepatitis, was prescribed a course of medication, and complained of pain in his hands, wrists and joints, Plaintiff's argument that he could not write beginning in March 2009, and that he is just now beginning to regain use of his hands, is not credible. Therefore, Plaintiff has not shown good cause to modify the court's scheduling order to allow him additional time to amend pleadings, conduct discovery, and file dispositive motions and oppositions.
Accordingly, Plaintiff's motion for a new scheduling ...