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Jimmy Mcdonald v. J. A. Yates

July 11, 2012

JIMMY MCDONALD,
PLAINTIFF,
v.
J. A. YATES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING MOTIONS FOR RECONSIDERATION, RULE 35 EXAMINATION, AND TO COMPEL, AND GRANTING PLAINTIFF LEAVE TO FILE AMENDED MOTION TO COMPEL WITHIN THIRTY DAYS (Docs. 63, 64, and 65)

Order Denying Discovery Motions

Plaintiff Jimmy McDonald is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are Plaintiff's motions for reconsideration, for a Rule 35 examination, and to compel and for sanctions, filed on June 4, 2012. Defendants filed an opposition on June 19, 2012, and Plaintiff filed a reply on July 2, 2012.

I. Motion for Reconsideration

On June 4, 2012, Plaintiff filed a motion entitled "Motion in Response to the Honorable Magistrates Denial for Plaintiffs Request for a Time Continuance for Further Discover and a New Scheduling Order," which the Court construes as a motion for reconsideration of its order denying Plaintiff's motion to modify the scheduling order.

Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quotations marks and citation omitted). The moving party must demonstrate both injury and circumstances beyond his control. Id. (quotation marks and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that Plaintiff show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion."

"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," and it "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original).

In his motion, Plaintiff states that he was late in sending his interrogatories regarding Defendant Rodriguez because he "barely found out about certain events concerning" Rodriguez. Plaintiff also states that he did not find out inmate Cervantes had knowledge of the incident until the day after the discovery deadline. Plaintiff requests that he be allowed leave to propound limited discovery in the form of (1) interrogatories to and/or deposition by written questions of Defendant Rodriguez and (2) a request for the production of documents.

As Plaintiff was previously informed, modification of the pretrial scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b)(4), and "[t]he schedule may be modified if it cannot reasonably be met despite the diligence of the party seeking the extension," Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (internal quotation marks and citation omitted). "If the party seeking the modification 'was not diligent, the inquiry should end' and the motion to modify should not be granted." Id.

In an order dated February 7, 2012, Plaintiff was invited to file a status report informing the Court whether he needed an extension of any deadlines and if so, to what date. Plaintiff did not comply with the order and as a result, the discovery deadline was extended to April 23, 2012, the date proposed by Defendants. Thereafter, Plaintiff filed an untimely motion to modify the scheduling order. In denying the motion, the Court found that Plaintiff failed to comply with the order to file a status report and Plaintiff failed to show good cause to modify the scheduling order.

Plaintiff's motion for reconsideration is unpersuasive. Plaintiff is not precluded from using inmate Cervantes' declaration to oppose Defendants' motion for summary judgment or from requesting that Cervantes be permitted to testify on his behalf at trial, but there are no grounds presented which support setting aside the Court's order denying Plaintiff's motion to modify the scheduling order. Plaintiff has not shown due diligence and the inquiry ends. Id. Plaintiff's motion for reconsideration is denied.

II. Motion for Rule 35 Examination

Citing to Rule 35 of the Federal Rules of Civil Procedure, Plaintiff seeks an order mandating that he be examined by an outside doctor and that medical testing be conducted.

Rule 35 provides that a court "may order a party whose mental or physical condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner." Discovery in this matter is closed, and in any event, Rule 35 does not contemplate authorizing Plaintiff to seek his own physical examination at government expense. See Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) ("[T]he expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress. . . .") (citation and internal quotation ...


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