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Donald J. Ackley v. D. Carroll

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 12, 2011

DONALD J. ACKLEY,
PLAINTIFF,
v.
D. CARROLL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO AMEND THE SCHEDULING ORDER (ECF No. 78)

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 currently set for trial on June 26, 2012. On July 15, 2011, a second scheduling order issued setting the pretrial dates. On August 29, 2011 and November 9, 2011, an order issued continuing the telephonic trial confirmation and trial dates due to conflicts with defense counsel's schedule and all other deadlines remained the same. On December 8, 2011, Plaintiff filed a notice of change of address in which he requested a new dates to file witness names and a preliminary injunction.*fn1

The Court construes Plaintiff's request for new deadlines to file witness names as a motion to amend the scheduling order. Plaintiff's pretrial statement and motion for the attendance of incarcerated witnesses were due on or before October 21, 2011. 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). Plaintiff's motion is devoid of any showing of good cause to modify the scheduling order. Accordingly, Plaintiff's motion for new deadlines to file witness names is HEREBY DENIED.

IT IS SO ORDERED.


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