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Shaulton J. Mitchell v. Hernandez

July 14, 2011

SHAULTON J. MITCHELL,
PLAINTIFF,
v.
HERNANDEZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' SECOND MOTION TO MODIFY SCHEDULING ORDER (DOC. 82) ORDER DENYING PLAINTIFF'S MOTION TO PROCEED TO TRIAL (DOC. 85)

ORDER DENYING PLAINTIFF'S MOTION REGARDING LOCATING JAMES GARCIA (DOC. 92)

ORDER DENYING PLAINTIFF'S MOTION REGARDING DISCOVERY (DOC. 93)

OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DUE WITHIN/ TWENTY-ONE DAYS

Plaintiff Shaulton J. Mitchell ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Hernandez, Gutierrez, Sloss, Bustos, Compelube. Pending before the Court are: 1) Defendants' second motion for modification of the scheduling order, filed February 28, 2011; 2) Plaintiff's motion to proceed to trial, filed March 8, 2011; 3) Plaintiff's motion to locate James Garcia, filed May 9, 2011; and 4) Plaintiff's motion for further discovery, filed May 16, 2011.

I. Defendants' Motion To Modify Schedule

Defendants move for a second modification of the schedule. Defendants requested an extension of the dispositive motion deadline from February 28, 2011 to March 30, 2011. Defs.'

Mem. P. & A. Support Mot. 2:13-2:22. Defendants' counsel contends that he had several pressing deadlines which made it impossible for counsel to complete the motion by February 28, 2011. Plaintiff opposes the motion, contending that Defendants' counsel has had adequate time to prepare a motion for summary judgment. Pl.'s Opp'n, Doc. 84. Defendants subsequently filed their motion for summary judgment on March 15, 2011.

The decision to modify a scheduling order is within the broad discretion of the district court. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). Pursuant to Federal Rule of Civil Procedure 16, a pretrial scheduling order "shall not be modified except upon a showing of good cause," and leave of court. Fed. R. Civ. P. 16(b)(4); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88 (9th Cir. 2002). Although "the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Johnson, 975 F.2d at 609.

The Court finds good cause to grant Defendants' motion. Accordingly, it is HEREBY ORDERED that Defendants' motion for modification of the scheduling order, filed February 28, 2011, is granted.

II. Plaintiff's Motion To Proceed With Trial

Plaintiff moves to proceed to trial. As the Court has granted Defendants' motion for modification of the scheduling order, and Defendants have filed a motion for summary judgment, Plaintiff's motion is premature. The Court will resolve Defendants' motion for summary judgment prior to setting any trial. Accordingly, it is HEREBY ORDERED that Plaintiff's motion to proceed to trial, filed March 8, 2011, is denied.

III. Plaintiff's Motion To Locate James Garcia

Plaintiff moves for a Court order directing the United States Marshal to locate James Garcia, a purported Defendant in this action. However, there is no Defendant by the name of James Garcia in this action. The Court will not order the United States Marshal to effect service on a non-defendant. ...


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