The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
) ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF DISCOVERY DEADLINE ) AND FOR SANCTIONS ) (Doc. 39.) )) ORDER DENYING PLAINTIFF'S MOTION ) FOR SUBPOENAS AS MOOT ) (Doc. 42.) ) ORDER GRANTING DEFENDANTS AN ) EXTENSION OF TIME NUNC PRO TUNC ) (Doc. 46.) ) ORDER DENYING PLAINTIFF'S MOTION ) FOR PRODUCTION OF DOCUMENTS AS ) UNTIMELY ) (Doc. 47.) ) ORDER CLOSING DISCOVERY
I. RELEVANT PROCEDURAL HISTORY
William Sutherland ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December 11, 2009. (Doc. 1.) This case now proceeds on the First Amended Complaint, filed on December 6, 2010, against defendants Correctional Officer ("C/O") A. Fernando and C/O M. Jericoff for use of excessive force in violation of the Eighth Amendment; against Warden James A. Yates ("Defendants") for failure to protect Plaintiff in violation of the Eighth Amendment; and on Plaintiff's related state tort claims. (Doc. 15.)
On September 8, 2011, the Court issued a scheduling order establishing a deadline of May 8, 2012 for the completion of discovery, including the filing of motions to compel, and a deadline of July 19, 2012 for the filing of pretrial dispositive motions. (Doc. 27.)
Four motions filed in this action are now before the Court: On April 16, 2012, Plaintiff filed a motion to extend the discovery deadline and to impose sanctions on Defendants. (Doc. 39.) On April 27, 2012, Defendants filed an opposition to the motion. (Doc. 40.) On May 14, 2012, Plaintiff filed a reply. (Doc. 43.)
On May 3, 2012, Plaintiff filed a motion for issuance of subpoenas duces tecum. (Doc. 42.) On July 17, 2012, Defendants filed a motion to vacate the dispositive motions deadline, or in the alternative, to extend the dispositive motions deadline for thirty days. (Doc. 46.) On August 13, 2012, Plaintiff filed an opposition to the motion. (Doc. 48.)
On August 6, 2012, Plaintiff filed a motion to compel production of documents for in camera review. (Doc. 47.)
II. PLAINTIFF'S MOTION TO EXTEND DISCOVERY DEADLINE AND FOR SANCTIONS
Plaintiff requests an extension of the discovery deadline of May 8, 2012, which was established by the Court's scheduling order issued on September 8, 2011. Plaintiff also requests that sanctions be imposed on Defendants for misleading Plaintiff and for failing to comply with the scheduling order.
Modification of Scheduling Order
Modification of the Court's 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). To establish good cause, the party seeking the modification of a scheduling order must generally show that even with the exercise of due diligence, they cannot meet the requirement of the order. Id. The court may also consider the prejudice to the party opposing the modification. Id. 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 argues that the discovery deadline in this action should be extended because Defendants caused a delay during the discovery phase by belatedly responding to Plaintiff's First Request for Discovery ("First Request"), failing to comply with the Court's forty-five day deadline.*fn1
Plaintiff asserts that he served the First Request upon Defendants on September 20, 2011, and therefore, pursuant to the Court's scheduling order, Defendants' response was due forty-five days later. (Motion, Doc. 39 at 1:22.) Plaintiff asserts that on November 10, 2011 and December 21, 2011, he sent letters to defense counsel asking when he would receive a response, and Defendants sent Plaintiff a misleading reply which misstated the dates that Plaintiff had served his First Request. (Id. at 1:26-28, 2:1-6.) Plaintiff asserts that on March 9, 2012, Defendants finally responded to the First Request, denying all of Plaintiff's requests for discovery. (Id. at 2:12-13.) Plaintiff argues that the Court's discovery deadline should be extended to compensate for the one-hundred-twenty-six days that Defendants delayed before responding to Plaintiff's First Request.
In opposition, Defendants argue that Plaintiff incorrectly states that Defendants did not respond to his first set of requests for discovery and production of documents. Defendants concede that their responses, although prepared in November 2011, were served untimely because of a clerical mistake, and upon learning of their oversight, Defendants served the responses on March 6, 2012. (Opp'n, Doc. 40 at 3:16-18.) Defendants assert that they also served supplemental responses and produced numerous documents in response to Plaintiff's discovery requests on April 16, 2012, and Plaintiff did not challenge the adequacy of the supplemental responses. (Id. at 3:19-22.) Defendants argue that ...