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Harris v. German

United States District Court, E.D. California

October 15, 2019

DEVONTE HARRIS, Plaintiff,
v.
HUMBERTO GERMAN, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S REQUEST FOR EXTENSION OF DISCOVERY FOR LIMITED PURPOSE DISCUSSED IN THIS ORDER (ECF NO. 72.), ORDER EXTENDING DISPOSITIVE MOTIONS DEADLINE

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         Devonte Harris (“Plaintiff”) is a 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 the First Amended Complaint filed by Plaintiff on March 14, 2016, against defendants (Correctional Officers) (C/O) Humberto German, C/O Philip Holguin, and C/O R. Bunitzki (collectively, “Defendants”), for use of excessive force in violation of the Eighth Amendment; and, against defendant C/O Philip Holguin for retaliation in violation of the First Amendment. (ECF No. 8.)

         On April 24, 2019, the court issued a scheduling order reopening discovery and setting new deadlines for the parties. (ECF No. 65.) The deadline for completion of discovery, including the filing of motions to compel, was extended to August 30, 2019, and the deadline for filing dispositive motions was extended to October 30, 2019. (Id.)

         On August 23, 2019, Plaintiff filed a motion to extend discovery for sixty days from the date of the court's order granting the motion. (ECF No. 72.) Defendants have not filed an opposition to Plaintiff's motion.

         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).

         Plaintiff requests an extension of the discovery deadline until sixty days from the date of this order. Plaintiff asserts that he is awaiting the court's ruling on his motion to compel filed on January 31, 2019, in which Plaintiff sought to inspect video evidence and compel production of documents from an internal affairs investigation.[1] Plaintiff also asserts that on or about August 5, 2019, he learned of a $50, 000.00 settlement from another lawsuit. Plaintiff requests time to conduct depositions in this case using the settlement funds. Plaintiff plans to obtain a court order allowing and facilitating the depositions. Plaintiff contends that he will not have time to arrange and conduct the depositions unless the current August 30, 2019 discovery deadline is extended.

         The court finds good cause to modify the court's scheduling order to extend discovery for this limited purpose. Plaintiff has shown diligence in his efforts to arrange and conduct depositions using funds from the settlement of another lawsuit, but he was unable to do so by the August 30, 2019 deadline. Defendants have not opposed Plaintiff's motion. Therefore, good cause appearing, Plaintiff's motion for extension of the discovery deadline shall be granted for the limited purpose of Plaintiff arranging and conducting depositions in this case.

         In light of this ruling, the court finds good cause to extend the deadline for filing dispositive motions in this case for all parties until February 18, 2020.

         III. CONCLUSION

         Based on the foregoing, and good cause appearing, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to modify the court's April 24, 2019 Scheduling Order, is GRANTED;
2. Plaintiff is GRANTED an extension of the discovery deadline until December 18, 2019, for the limited purpose of Plaintiff arranging and ...

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