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Smith v. Gonzales

United States District Court, E.D. California

September 5, 2019

LARRY SMITH, Plaintiff,
v.
SGT. J. GONZALES, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO MODIFY SCHEDULING ORDER (ECF NO. 45.) ORDER STAYING DEADLINES FOR DISCOVERY AND FOR FILING DISPOSITIVE MOTIONS, PENDING RESOLUTION OF DEFENDANTS' EXHAUSTION MOTION (ECF NO. 33.) DEADLINES STAYED: DISCOVERY DEADLINE DISPOSITIVE MOTIONS DEADLINE

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Larry Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint filed on June 23, 2017, against defendants Sergeant Gonzales, Correctional Officer (C/O) Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz for use of excessive force in violation of the Eighth Amendment; against defendants C/O Fritz and C/O Scaife for failure to protect Plaintiff in violation of the Eighth Amendment; and against defendant Sergeant Gonzales for retaliation in violation of the First Amendment.[1] (ECF No. 12.)

         On February 4, 2019, the court issued a Discovery and Scheduling Order establishing pretrial deadlines for the parties, including a deadline of August 4, 2019, for the parties to complete discovery, including the filing of motions to compel, and a deadline of October 4, 2019, for the filing of pretrial dispositive motions. (ECF No. 33.)

         On July 19, 2019, Defendants filed a motion to modify the Discovery and Scheduling Order. (ECF No. 45.) On August 5, 2019, Plaintiff filed an opposition to the motion. (ECF No. 46.) On August 12, 2019, Defendants filed a reply to the opposition. (ECF No. 49.)

         Defendants' motion to modify the Discovery and Scheduling Order is now before the court. Local Rule 230(l).

         II. MOTION TO MODIFY SCHEDULING ORDER

         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. Defendants' Motion

         Defendants move to vacate and reschedule the deadlines to complete discovery and to file dispositive motions in this case. On April 30, 2019, Defendants filed a motion for summary judgment for failure to exhaust which is now pending and if granted, this case will be dismissed. If the motion is not granted, Defendants anticipate conducting discovery and filing a merits-based motion for summary judgment. Defense counsel declares that he has been diligent in defending this action, filing an answer for Defendants on February 1, 2019, and thereafter preparing a motion for summary judgment on the ground of failure to exhaust administrative remedies, which was filed on April 30, 2019. (Matheson Decl., ECF No. 45-1 at 4 ¶ 2.) Because the Magistrate Judge's findings and recommendations have not yet issued, Defendants expect their exhaustion motion will not be decided until after the time to complete discovery has passed. Further, since the court's ruling on the exhaustion motion may dispose of the case, Defendants request the court to vacate the discovery and dispositive motions deadlines to be re-set if necessary after the court's final ruling on the exhaustion summary judgment motion. Defendants contend that Plaintiff will not be prejudiced by the brief extension.

         B. Plaintiff's Opposition

         In opposition, Plaintiff argues that the parties had adequate notice of the discovery and dispositive motions deadlines and therefore the deadlines should not be extended. Plaintiff argues that defense counsel is wasting the court's time and stalling, and that defense counsel tends to stretch the truth.

         C. Defendants' Reply

         Defendants argue that they have been diligent in the litigation of this case, meeting the early initial deadline to file their exhaustion summary motion on April 30, 2019. While delays occurred because both parties requested and were granted extensions of time to respond to the pleadings, Defendants argue that they were reasonably diligent. Defendants deny wasting the court's time and stalling, and they anticipate a rather brief extension of the existing deadlines. Defendants argue there is no ...


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