United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO REOPEN DISCOVERY (ECF No. 145)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Jamisi Jermaine Calloway ("Plaintiff") is a state prisoner proceeding with counsel in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's first amended complaint, filed on December 13, 2007, against Defendants Montgomery, Babb and Bhatt for violation of the Eighth Amendment. Discovery in this action has closed and the parties' cross-motions for summary judgment have been denied. The parties have consented to the jurisdiction of the United States Magistrate Judge.
On December 4, 2013, the Court issued an Amended Second Scheduling Order. Pursuant to that Order, the Court set a telephonic trial confirmation hearing for January 16, 2014, and a jury trial for February 25, 2014. The Court also set pretrial dates related to the filing of pretrial statements and the procedures for obtaining the attendance of incarcerated and unincarcerated witnesses. (ECF No. 127.)
On December 16, 2013, Plaintiff's pro bono counsel filed a notice of appearance in this action. (ECF Nos. 130, 131.) On November 19, 2013, Defendants designated new counsel from the Attorney General's office, and terminated prior counsel. (ECF No. 133.)
On December 20, 2013, Plaintiff filed a motion to continue the jury trial and pretrial deadlines set by the Amended Second Scheduling Order for 120 days. (ECF No. 135.) On January 14, 2014, the Court granted the motion to modify the Amended Second Scheduling Order and set this matter for a telephonic trial confirmation hearing on May 7, 2010. Additionally, the Court ordered Plaintiff to file any motion to reopen discovery within fifteen days. (ECF No. 144.)
On January 29, 2014, Plaintiff filed the instant motion to reopen discovery. (ECF No. 145.) Defendants opposed the motion on February 18, 2014, and Plaintiff replied on February 21, 2014. (ECF Nos. 146, 147.) The motion is deemed submitted. Local Rule 230(l).
II. Legal Standard
Pursuant to Rule 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The "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). The court may modify the scheduling order "if it cannot reasonably be met despite the diligence of the party seeking the extension." Id . If the party was not diligent, the inquiry should end. Id.
Courts have permitted the reopening of discovery where a state prisoner proceeding pro se moved to reopen discovery following the appointment or retention of counsel after the discovery cut-off date. In so doing, courts have considered not only the diligence of the prisoner in pursuing discovery, but also the necessity of additional discovery for trial preparation and for resolution of the matter on the merits. See, e.g., Draper v. Rosario, 2013 WL 6198945, at *1-2 (E.D. Cal. Nov. 27, 2013) (court permitted pro se prisoner to reopen discovery when he acquired pro bono counsel after the discovery cut-off date; counsel alone did not entitle plaintiff to additional discovery, but limited additional discovery would serve the ultimate resolution of case on the merits); Woodard v. City of Menlo Park, 2012 WL 2119278, at *1-2 (N.D. Cal. June 11, 2012) (discovery reopened for pro se plaintiff who obtained counsel after the discovery cut-off date, noting that additional fact discovery would serve the interest of justice and the public policy of adjudicating cases on the merits); Henderson v. Peterson , 2011 WL 441206, at *2 (N.D. Cal. Feb. 3, 2011) (court noted that despite pro se plaintiff's discovery efforts, he was unable to gain access to evidence that he might have obtained had he been represented by counsel).
1. Plaintiff's Position
Plaintiff moves for a court order (1) modifying the current scheduling order to reopen discovery until May 7, 2014; (2) permitting Plaintiff to serve each defendant with up to 25 interrogatories beyond what has already been served; (3) deposing Defendants Montgomery, Babb and Bhatt; (3) propounding written discovery of 18 new witnesses disclosed in Defendants' pretrial statement; and (4) deposing the newly identified witnesses.
Plaintiff argues that good cause exists to modify the scheduling order and reopen discovery. First, Plaintiff contends that he diligently pursued discovery in this matter, but because of his pro se status and limited resources he was unable to gain access to evidence and information pertinent to his claims, such as the identity of witnesses with discoverable information, documents related to Defendants' searches of Plaintiff, including the forcible enema on March 14, 2013, and documents Defendants intend to use in support of their defenses. Plaintiff further contends that because he proceeded ...