The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to modify the scheduling order to file a summary judgment motion past the filing deadline. For the following reasons, further briefing is ordered.
Under Federal Rule of Civil Procedure Rule 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." "Rule 16(b)'s 'good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the moving party is unable to reasonably meet a deadline despite acting diligently, the scheduling order may be modified. Id. If, however, the moving party "'was not diligent, the inquiry should end' and the motion to modify should not be granted." Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 609).
This action is proceeding on the original complaint filed December 27, 2010. The only defendant is Michael McDonald, the Warden at High Desert State Prison ("HDSP"). Plaintiff alleges that he received inadequate medical care for his diabetes. In the complaint, plaintiff seeks injunctive relief only. In particular, plaintiff requests that he be transferred to either San Quentin or "Vacaville State Prison."
On November 26, 2012, the court issued a further scheduling order. The pretrial conference was set for February 15, 2013. The jury trial is set for June 17, 2013 before the Honorable Kimberly J. Mueller.
On January 14, 2013, plaintiff filed his pretrial statement. On February 8, 2013, defendant filed his pretrial statement. On February 22, 2013, plaintiff filed a letter with the court stating that he wished to seek money damages in this action.
On March 1, 2013, defendant filed a summary judgment motion and the pending motion to modify the scheduling order to allow for the filing of the summary judgment motion. In the motion to modify, defendant states that plaintiff is now housed at R. J. Donovan Correctional Facility ("RJDCF"). Defendant argues that he should be allowed to argue that plaintiff's claim for injunctive relief is now moot. Defendant also argues that he should be allowed to address plaintiff's request for damages. Regarding plaintiff's request for damages, in the proposed summary judgment motion, defendant argues that as the Warden, he was not involved in the alleged inadequate medical care. Defendant also argues that plaintiff was not injured as a result of the alleged delay in his receipt of insulin shots.
In the motion to modify, defendant states that on October 24, 2012, plaintiff filed a notice of change of address reflecting his transfer to RJDCF. Defendant states that he only had two weeks to file a timely summary judgment motion following his receipt of the notice of change of address.
In his opposition to defendant's motion to modify the scheduling order, plaintiff argues that he did not receive the injunctive relief requested, i.e., a transfer to either San Quentin or the California Medical Facility.
When a prisoner is transferred from a prison, claims for injunctive relief arising from conditions at the former prison become moot. See Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368--69 (9th Cir. 1995)). While plaintiff alleges that he did not receive the requested injunctive relief, i.e., a transfer to San Quentin or "Vacaville State Prison," plaintiff now is housed at RJDCF. The court has no authority to order prison officials at RJDCF to transfer plaintiff to a different prison as there are no defendants at RJDCF. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) (this court is unable to issue an order against individuals who are not parties to a suit pending before it).*fn1 For these reasons, the court would agree with defendant that plaintiff's request for injunctive relief should be dismissed.
Defendant could have raised the issue of mootness regarding plaintiff's request for injunctive relief sooner. However, defendant was sufficiently diligent in filing his motion to modify the scheduling order. For this reason, defendant's motion to modify the scheduling order to file a summary judgment motion addressing plaintiff's request for injunctive relief is granted.
Further briefing is required regarding plaintiff's request to amend
his complaint to include a request for money damages.*fn2
Plaintiff does not indicate whether he is seeking to reopen
discovery if his request to seek damages is granted. If plaintiff is
seeking to re-open
discovery, the court is inclined to deny his request to amend his
complaint. If plaintiff does not seek to conduct discovery, the court
is inclined to grant plaintiff's ...