United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S REQUEST FOR EXTENSION
OF DISCOVERY FOR LIMITED PURPOSE DISCUSSED IN THIS ORDER (ECF
NO. 72.), ORDER EXTENDING DISPOSITIVE MOTIONS
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
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.)
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.)
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.
MOTION TO MODIFY SCHEDULING ORDER
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).
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. 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.
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.
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.
on the foregoing, and good cause appearing, IT IS HEREBY
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 ...