Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on plaintiff's claims that defendants Cherniss, Lesane, and Forncrook ("defendants"), through their alleged searches, sexual misconduct, or response to plaintiff's complaints of the same, violated plaintiff's First, Fourth and Eighth Amendment rights. The following motions are currently pending before the court: (1) plaintiff's May 24, 2012 request for an extension of time; (2) plaintiff's June 1, 2012 motion for reconsideration and June 1 and June 29, 2012 requests for the issuance of a subpoena; (3) plaintiff's July 9, 2012 motion to compel; (4) defendants' September 28, 2012 motion for summary judgment and motion to dismiss; and (5) plaintiff's October 9, 2012 motion to stay.
I. Plaintiff's Request for an Extension of Time (Dckt. No. 41)
On May 24, 2012, plaintiff requested an "additional extension of time to propound discovery." Dckt. No. 41. On June 1, 2012, plaintiff informed the court that this request should be considered to be "null and void." Dckt. No. 43 at 2. Accordingly, plaintiff's request is denied as moot.
II. Plaintiff's Motion for Reconsideration (Dckt. No. 43) & Motion for Issuance of a Subpoena (Dckt. Nos. 44, 49)
On March 12, 2012, plaintiff informed the court that prison officials had confiscated his legal property when he was transferred to R.J. Donovan Correctional Facility. Dckt. No. 27. He claimed that he could not proceed in this action without his property and requested an order directing prison officials to return his property. Id. The court denied plaintiff's request, finding that his claimed inability to proceed in this action lacked merit. Dckt. No. 32 at 1. The court also informed plaintiff of the following:
Should any delay in the return of plaintiff's legal property interfere with his ability to meet a court-imposed deadline, he may then request that the court grant him an extension of time, explaining why he has been unable to meet the deadline in the time provided. If plaintiff seeks additional time on the grounds he did not have adequate access to his property, he must indicate why he is unable to meet the deadline without that property, what specific requests he has made for access to that property, and how prison officials have responded to those requests.
On March 22, 2012, the court issued a discovery and scheduling order. Dckt. No. 29. It set July 6, 2012 as the close of discovery and required that all requests for discovery be served by May 7, 2012. Id.
On April 9, 2012, plaintiff requested a 30-day extension of time to serve discovery requests because some of his legal materials had been confiscated. Dckt. No. 33. On May 22, 2012, the court denied plaintiff's request because plaintiff did not explain what efforts he had made, if any, toward drafting his requests for discovery or how the lack of access to some of his legal property had interfered with his ability to draft his discovery requests. Dckt. No. 39 at 2.
On April 23, 2012, plaintiff requested that the U.S. Marshal serve a subpoena duces tecum to obtain documents from the California Department of Corrections and Rehabilitation. See Dckt. No. 36 (including list of 36 categories of requested documents). On May 22, 2012, the court denied plaintiff's request because (1) plaintiff failed to provide a completed subpoena for service, and (2) plaintiff failed to demonstrate that he was seeking only relevant documents, and that the documents he sought were unavailable to him and not obtainable from defendants through discovery. Dckt. No. 39 at 3.
Plaintiff now moves for reconsideration of the May 22, 2012 order denying his request to modify the scheduling order. Dckt. No. 43. He also requests a subpoena duces tecum. Dckt. Nos. 44, 49.
In the motion for reconsideration, plaintiff purports to provide "a more detailed account of why he could not meet the deadline despite exercising due diligence . . . ." Dckt. No. 43 at 2. However, a motion for reconsideration is not a vehicle for correcting mistakes in an earlier filed motion based on information that was previously available. Instead, Local Rule 230(j) requires that a motion for reconsideration state "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion," and "why the facts or circumstances were not shown at the time of the prior motion." E.D. Cal., Local Rule 230(j)(3)-(4). Plaintiff's motion must be denied because it does not describe new or different facts that plaintiff could not have shown with his prior motion.
Moreover, a scheduling order may only 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).
Here, plaintiff admits to receiving the court's scheduling order "on or about April 4, 2012." Dckt. No. 43 at 3. He contends that until April 21, 2012 he did not have the legal materials he needed for this case. Id. He does not describe those legal materials in any detail, but states that on April 21, 2012, some, but not all of those materials were returned to him in a disorganized fashion. Dckt. No. 43 at 4. He claims he was able to diligently draft and serve requests for interrogatories, but that he was not able to timely serve requests for admissions or requests for production of documents. Id.
In his reply brief, however, plaintiff admits to receiving at least some of his legal materials as early as April 3, 2012. Dckt. No. 48 at 7. Furthermore, on April 18, 2012, plaintiff prepared and filed with the court a subpoena request with 36 specific categories of documents he was seeking regarding the claims and defendants in this action. See Dckt. No. 36 (referencing specific dates and administrative appeals by number, and identifying four potential inmate witnesses by name and CDCR number). Thus, the statements made by plaintiff in his motion for reconsideration are flatly contradicted by the case file. It appears that plaintiff had both the time and resources to timely serve requests for admissions and requests for production of documents, but simply failed to do so. Plaintiff's motion for reconsideration must be denied.
In his motion for reconsideration, plaintiff also renews his request for a subpoena duces tecum, explaining that he would like to serve a subpoena after ensuring that the documents sought in his requests for production are not available from defendants. Dckt. No. 43 at 5; see also Dckt. Nos. 44, 49. Because discovery is closed and plaintiff's motion for reconsideration is denied, plaintiff cannot demonstrate that the requested documents were ...