United States District Court, E.D. California
KELVIN X. SINGLETON, Plaintiff,
A. HEDGEPATH, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO REOPEN DISCOVERY FOR ALL PARTIES TO THIS ACTION, FOR LIMITED PURPOSE (Doc. 227.)
ORDER DENYING PLAINTIFF'S REQUEST FOR TELEPHONIC CONFERENCE
GARY S. AUSTIN, Magistrate Judge.
I. RELEVANT PROCEDURAL HISTORY
Kelvin X. Singleton ("Plaintiff") is a state prisoner proceeding with counsel in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 18, 2008. (Doc. 1.)
This case now proceeds with Plaintiff's Second Amended Complaint filed on February 12, 2009, against defendants Chief Medical Officer (CMO) A. Youssef; S. Lopez, M.D.; J. Akanno, M.D.; S. Qamar, M.D.; Dr. Vasquez, M.D.; Registered Nurse II (RN) Ali; and RN Wright-Pearson ("Defendants"), on Plaintiff's claims for deliberate indifference to his serious medical needs in violation of the Eighth Amendment, for delay in providing effective treatment for Plaintiff's back pain, and failure to respond to Plaintiff's eye pain and swelling. (Doc. 26.)
On February 5, 2015, the parties to this action appeared before Magistrate Judge Edmund F. Brennan for a settlement conference. After discussions with the Court, the case did not settle.
On February 9, 2015, the court issued an order requiring the parties to file status reports addressing their readiness for trial. (Doc. 226.) On March 6, 2015, Plaintiff filed a motion to reopen discovery. (Doc. 227.) On March 12, 2015, Plaintiff filed a status report, requesting the court to schedule a telephonic status conference in this case. (Doc. 229.) On April 10, 2015, Defendants filed an opposition to Plaintiff's motion to reopen discovery. (Doc. 231.) On April 17, 2015, Plaintiff filed a reply to the opposition. (Doc. 232.)
Plaintiff's motion to reopen discovery and request for a telephonic status conference are now before the court.
II. MOTION TO REOPEN DISCOVERY
Modification of a 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).
A. Plaintiff's Position
Plaintiff requests the court to reopen the discovery phase for this action, allowing him to conduct further limited discovery before trial. Plaintiff argues that Defendants did not provide him with the means to develop the full factual record during the period of his self-representation, which he requires to adequately prepare for and proceed to trial. Plaintiff argues that this case has not been properly discovered, despite Plaintiff's diligence, and Plaintiff will be severely prejudiced if he is forced to proceed to trial without further discovery.
Plaintiff asserts that he propounded written discovery immediately following the court's first discovery and scheduling order on March 31, 2010. In April 2010, Plaintiff served interrogatories, requests for admissions, and requests for production on then-Defendants Ali, Akanno, Lopez, and Youssef. (Docs. 71, 107.) Defendants ultimately refused to produce any of Plaintiff's medical records, and served boilerplate and misplaced objections to Plaintiff's interrogatories and requests for admission. (Docs. 107-4 at 1-16, 98 at 13-17, 19-39.) Because of his limited resources and status as an incarcerated individual without legal representation, Plaintiff was unable to obtain any further affirmative discovery, was unable to depose any of the Defendants, and effectively served only one subpoena on one third-party witness. (Decl. of Kelvin Singleton ¶11.) In August 2010, Plaintiff requested further responses from Defendants, and included revised interrogatories more narrow in scope. (Doc. 98 at 6.) Defendants Akanno and Youseff never filed revised responses to any of the written discovery. Defendant Ali served revised responses to the interrogatories only, but his answers were incomplete and evasive. (Id. at 48-50.) Defendant Lopez served revised responses to the requests for admission, objecting to or denying each request. (Id. at 42-46.) Plaintiff filed a motion to compel the defendants to respond. (Doc. 97.) While waiting for the court to rule on his motion to compel, the initial discovery deadline ended in November 2010. The court did not rule on the motion until May of the following year. (Doc. 183.)
In December 2010, defendants Qamar and Wright-Pearson appeared in this action. Shortly thereafter, Plaintiff filed a partial motion for summary judgment, and on February 22, 2011, Defendants filed a cross-motion for summary judgment. (Docs 132, 147.) The court re-opened discovery for the limited purpose of conducting discovery as to Plaintiff's claims against the newly-joined defendants Qamar and Wright-Pearson. (Doc. 142.) Discovery was not reopened against defendant Vasquez. After more than a year of unsuccessful discovery, Plaintiff believed that additional discovery would prove unavailing and instead focused his efforts on responding to the Defendants' pending motion for summary judgment. (Id.)
In May 2011, the court finally ruled on Plaintiff's motion to compel and granted him an additional 30 days to re-serve interrogatories on defendants Akanno, Lopez, and Youseff. (Doc. 183.) However, before Plaintiff could take advantage of the reopened discovery period, the court ruled that it would not accept for consideration any additional documents in support of either Plaintiff's or Defendants' pending motions for summary judgment. (Doc. 186.)
On March 27, 2011, the court ruled on Defendants' motion for summary judgment. (Docs. 196, 198.) The Ninth Circuit reversed the decision on June 6, 2014, finding that Plaintiff has ...