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Donald J. Ackley v. D. Carroll


May 16, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Donald J. Ackley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed June 19, 2006, against Defendants Carroll, Blevin, Uribe, and Wright for excessive force in violation of the Eighth Amendment, and Defendant Carroll for retaliation in violation of the First Amendment. (ECF No. 1.) A discovery and scheduling order was issued opening discovery on May 20, 2009. (ECF No. 21.) On April 15, 2010, Plaintiff filed a motion for an extension of time to complete discovery, which was denied on June 29, 2010. (ECF Nos. 34, 38.) On November 29, 2010, Defendants filed a motion for summary judgment. (ECF No. 47.) Plaintiff filed an opposition and a request to stay Defendants motion and conduct additional discovery on December 22, 2010.*fn1 (ECF Nos. 50, 51.) Defendants filed a request for an extension of time to file a reply, which was granted, however no reply was filed.

In his motion Plaintiff alleges that Defendants motion for summary judgment is untimely and moves to have it disregarded. On October 25, 2010, the Court issued an order granting Defendants a thirty day extension of time to file dispositive motions.*fn2 Plaintiff alleges that since Defendants motion was not filed until November 29, 2010, it was four days late. However, due to Court holidays, Defendants' motion was not due until November 29, 2010. Fed. R. Civ. Proc. 6. Since the motion was filed November 29, 2010, it was timely and Plaintiff's motion shall be denied.

Plaintiff also requests that if the motion for summary judgment proceeds he be allowed to conduct additional discovery to oppose the motion. Plaintiff states that additional discovery is necessary so he can prove that Defendants lied under oath in their declarations. He wishes to subpoena inmate witnesses who observed the attack, the inmates who attacked him to determine why they acted as they did, and a physician to examine his medical records to determine how his eye was injured.

The deadline for the completion of all discovery in this action was January 20, 2010. Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

The scheduling order was issued on May 20, 2009, and Plaintiff had eight months to conduct discovery. Plaintiff's prior motion for additional time to conduct discovery was denied because Plaintiff failed to show good cause. Plaintiff is requesting to reopen discovery to obtain declarations that should have been anticipated from the inception of this action. Plaintiff has failed to show that he has made any attempts to obtain the information requested while discovery was open and he did not file a motion to extend discovery prior to the discovery deadline. Plaintiff's current motion, filed over eleven months after discovery in this action has closed, fails to show diligence in attempting to comply with the scheduling order.

To allow a modification of the scheduling order without good cause would render scheduling orders essentially meaningless, and directly interfere with courts' attempts to manage their dockets and with the standard course of litigation in actions such as this. Johnson, 975 F.2d at 610 ("A scheduling order is not a frivolous piece of paper, idly entered . . . ." (internal quotations and citation omitted)). Plaintiff has not established good cause to modify the scheduling order and his motion to reopen discovery shall be denied.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion to request a stay to conduct discovery filed December 22, 2010, is DENIED.


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