The opinion of the court was delivered by: Hon. Bernard G. Skomal U.S. Magistrate Judge United States District Court
ORDER: (1) GRANTING PLAINTIFF'S MOTION FOR LEAVE TO EXTEND DISCOVERY; (2) AMENDING FINAL PRETRIAL CONFERENCE SCHEDULE AND MANDATORY SETTLEMENT CONFERENCE DATE [DOC. NO. 33.]
Gerald Wilson ("Plaintiff") filed this civil rights action pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff's complaint alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they subjected Plaintiff to excessive force. (Id. at 3.) Plaintiff alleges that he was slammed to his cell floor and received punches to his head. (Id. at 5.) Plaintiff further alleges that as he was escorted by Defendant Collins he was kicked in the head and that after arriving in the "sally port" Defendant Collins also slammed Plaintiff to the ground and "applied the sole of his boot to Plaintiff's head." (Id.)
Plaintiff is a prisoner that was proceeding pro se until this Court appointed him pro bono representation pursuant to General Order 596. (See Doc. No. 22.) Pro bono counsel was appointed on April 13, 2012. (Id.)
The instant motion concerns Plaintiff's request to amend the schedule in order to continue discovery for the purpose of taking two additional depositions. Pl.'s Memo of P&A at 2; Doc. No. 33-1. Defendants oppose the motion. Defs.' Opp'n at 4; Doc. No. 34.
I. Relevant Procedural and Factual Background
Pursuant to the original Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings, all fact discovery was to be completed no later than October 11, 2011, and all expert discovery was to be completed no later than January 23, 2012. (Doc. No. 14.) Pro bono counsel was appointed on April 13, 2012 and officially substituted in as counsel of record on April 27, 2012. (Doc. Nos. 22, 24.)
On June 12, 2012, Plaintiff requested to reopen discovery in order depose Defendants, as well as to depose Defendants' expert witness. Joint Mot. to Reopen Discovery at 2; Doc. No. 27. Plaintiff specifically requested to reopen discovery until July 31, 2012. (Id.) Defendants did not oppose this request and agreed to exchange certain Rule 26 documents, produce Defendants' personnel records pertaining to excessive force against inmates, produce Defendants for deposition, as well as produce Defendants' expert for deposition. (Id. at 3.) This Court granted Plaintiff's request to reopen discovery in order to take Defendants' depositions, depose the expert witness, and to exchange the documents addressed in the motion to reopen discovery. (Doc. No. 28.) The deadline to complete the additional discovery was set for July 31, 2012. (Id.)
On July 26, 2012-five days before the discovery deadline-Plaintiff filed the instant motion seeking an extension of time in order to complete additional discovery. Pl.'s Memo of P.&A. at 2. Specifically, Plaintiff wants to take two additional witness depositions. Id. The two witnesses that Plaintiff wants to depose were potentially present outside of Plaintiff's cell immediately after and perhaps during the time the alleged excessive force was applied. Id.
Plaintiff seeks leave to extend discovery in order to depose two witnesses. (Doc. No. 33.) The first witness Plaintiff wants to depose is Officer Pickett. Id. Plaintiff believes Officer Pickett was present when Plaintiff was escorted by Officer Collins to the Investigative Services Unit ("ISU") holding cell, and therefore, had the opportunity to observe whether force was used during the escort and perhaps even in the cell. Id. at 2-3. Officer Pickett also completed a crime incident report stating that he witnessed Officer Bravo administer Miranda warnings to Plaintiff. Decl. Adler at Ex. A; Doc. No. 33-3.
Plaintiff also wants to depose Sergeant Barlow. Id. at 3. According to testimony from Officer Collins, Sergeant Barlow "may have been" the third officer that accompanied Plaintiff to the ISU holding cell, "[t]hus, it is possible that Sergeant Barlow witnessed some of the events inside [Plaintiff's] cell" before Plaintiff was escorted to ISU. Pl.'s Memo of P.&A. at 3. Furthermore, Plaintiff contends that Sergeant Barlow's deposition is especially important because Plaintiff recently learned that Officer Collins-the officer he believed forcefully stood on his head while he was in the ISU holding cell-is a woman, and therefore, is not likely the officer that did in fact stand on his head. Id. at 3 n. 4. Plaintiff testified that the officer that stepped on his head was male. Decl. Adler at Ex. B; Doc. No. 33-4. Plaintiff's cell mate described the officer that stood on Plaintiff's head as a black man with glasses. Decl. Adler, Ex. C; Doc. No. 33-5. Officer Collins testified that at the time of the incident Sergeant Barlow was the ISU squad leader. And according to Plaintiff's counsel, Sergeant Barlow is an African American male that wears glasses. Decl Adler at ¶ 8; Doc. No. 33-2.
III. Applicable Legal Standard
Federal Rule of Civil Procedure 16(b)(1) & (3) state in relevant part, "the district judge or a magistrate judge when authorized by local rule must issue a scheduling order . . . [it] must limit the time to join other parties, amend the pleadings, complete discovery, and file motions." Fed. R. Civ. P. 16(b)(1) & (3). Federal Rule of Civil Procedure 16(b)(4) states that a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The Court's inquiry into the "good cause" standard primarily considers the diligence of the party seeking to amend the scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The Court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Id. (citing to Fed. R. Civ. P. 16 advisory committee's notes (1983 Amendment)). Carelessness is not compatible with a finding of diligence and offers no reason to grant relief. Engelson v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992); Martella Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971). Although the existence or degree of prejudice to the party opposing the modification might supply ...