Plaintiff is a state prisoner proceeding in forma pauperis and without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff moves to quash defendants' subpoena to produce documents, and to amend his complaint. Dckt. Nos. 30, 33. Defendants Antipov, Downie and Parks filed a statement of non-opposition to the motion to amend, but request that the court's discovery and scheduling order be modified. Dckt. No. 32. For the reasons stated below, the court denies plaintiff's motion to quash, grants plaintiff's motion to amend, and grants defendants' request to modify the discovery and scheduling order.
In his motion to quash, plaintiff indicates that defendants served a subpoena to produce documents. Dckt. No. 33. Plaintiff, citing to Rule 45(c)(3) of the Federal Rules of Civil Procedure, argues that defendants' subpoena should be quashed because he was not provided with a reasonable amount of time to produce responsive documents, responsive documents are not in his possession, and the requested documents are privileged. Id. He does not, however, include a copy of the subpoena or otherwise describe the contents of the subpoena. Because of this omission, the court cannot determine to whom the subpoena was directed, or whether grounds exist to quash it. Accordingly, plaintiff's motion to quash is denied.
The court's discovery and scheduling order set December 30, 2011 as the deadline for filing motions to amend. Dckt. No. 19. On March 12, 2012, plaintiff moved to amend his complaint and argued it should be deemed timely filed due to "unforeseen and extraordinary circumstances." Dckt. No. 30 at 4. Defendants Park, Downie, and Antipov filed a statement of non-opposition to plaintiff's motion. Dckt. No. 32.
A 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). Plaintiff states that since commencing this action, he has learned the identities of three Doe defendants named in the original complaint. He seeks leave to amend in order to add these three individuals as defendants. Plaintiff explains he could not meet the court's deadline for filing a motion to amend because since December 16, 2011, he has had no access to his legal property or to the law library. Dckt. No. 30. Good cause appearing, the deadline for filing motions to amend is modified, and plaintiff's March 12, 2012 motion is deemed timely filed.
Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Because defendants Downie and Parks filed a responsive pleading on September 6, 2011, and defendant Antipov filed a responsive pleading on January 31, 2012, plaintiff's opportunity to amend "as a matter of course" expired 21 days thereafter. Nonetheless, Rule 15(a)(2) provides that "[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The policy of freely granting leave to amend should be applied with "extreme liberality." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court should consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Granting or denying leave to amend rests in the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).
Here, there is no indication that plaintiff, who is appearing pro se, unduly delayed in requesting leave to amend or that his filing was made in bad faith. Further, the amendments made by plaintiff are not futile, as the court has already determined for purposes of 28 U.S.C. § 1915A, that they state cognizable claims. See Dckt. No. 5. Additionally, defendants have given their written consent to plaintiff's proposed amendments. Dckt. No. 32. Plaintiff's motion to amend is therefore granted.
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). The court finds that, for the limited purposes of § 1915A screening, the amended complaint states cognizable Eighth Amendment deliberate indifference to medical needs claims against all defendants.*fn1
IV. Request to Modify the Discovery and Scheduling Order
Defendants request that the schedule be modified to extend the deadlines for discovery and dispositive motions by six months, given that plaintiff's amended complaint adds three new defendants to this action. Dckt. No. 32. Good cause appearing, defendants' request to modify the scheduling order is granted.
Accordingly, IT IS HEREBY ...