Pember # 067165 v. Ryan et al

Filing 71

ORDER that Plaintiff's 66 Motion to Modify Deadlines and 67 Motion to Compel Discovery are DENIED. Signed by Magistrate Judge Lawrence O Anderson on 6/24/2014.(LFIG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jay Lynn Pember,
Plaintiff,

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vs.

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Charles L. Ryan, et al.,
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Defendants.
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No. CV-11-2332-PHX-SMM (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion to Modify Deadlines and
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Plaintiff’s Motion to Compel Discovery. (Docs. 66-67) Defendants have not filed a response.
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Plaintiff initiated this action by filing a Civil Rights Complaint by a Prisoner on
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November 28, 2011. (Doc. 1) He subsequently filed a First Amended Complaint on February
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13, 2013. (Doc. 18) In Count One, Plaintiff asserts deliberate indifference to his serious
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medical needs in violation of the Eighth Amendment based on allegations he received
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inadequate medical care for injuries to his neck resulting from a prison official stepping on
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it during a prison riot in 2004. (Doc. 18 at 11-15) Plaintiff alleges in Count Two a violation
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of the Due Process Clause based on his confinement for almost four years in the Browning
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Supermax Unit. (Doc. 18 at 15-23) The assigned District Judge screened the First Amended
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Complaint on April 5, 2013, and directed ten named defendants to answer Counts One and
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Two. (Doc. 19 at 12)
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In his motion to modify the deadlines, Plaintiff asks the Court to refer to his motion
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to compel which, he contends, demonstrates good cause to extend the scheduling order

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deadlines. (Doc. 66) Because the motion to modify deadlines contains no discussion of the

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reasons Plaintiff is seeking the modifications, the Court will consider Plaintiff’s request to

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modify the deadlines in conjunction with the motion to compel.

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In the motion to compel, Plaintiff states he served requests for production of

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documents and interrogatories on several defendants on January 14, 2014. (Doc. 67 at 2-3)

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After thirty days passed without any responses, Plaintiff wrote a letter to Defendants’

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counsel. He wrote another letter after sixty days passed and a third letter after ninety days

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passed. One week after sending the third letter, Plaintiff received a response from

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Defendants’ counsel, which Plaintiff attaches to the motion to compel. (Doc. 67, Exh. E)

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Defendants’ counsel states in the letter that no responses to Plaintiff’s discovery requests

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were provided because the requests were sent almost a month and-a-half after the December

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2, 2013 deadline for discovery requests. (Id.) Plaintiff contends he has made several attempts

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to resolve this alleged dispute by writing letters to Defendants’ counsel and “by filing several

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motions to extend trial management deadlines. . . .” (Doc. 67 at 3)

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The Court docket shows Plaintiff filed one previous motion to extend deadlines on

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November 26, 2013, in which he requested a blanket extension of all the deadlines in the

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scheduling order, doc. 38, issued on September 23, 2013. (Doc. 53) Plaintiff sought the

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extensions because he was transferred to a lockdown facility on August 22, 2013 and all his

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property, including legal materials, was confiscated. (Doc. 53 at 1-2)

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acknowledged, however, that he received “most of his legal box back on September 18,

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2013.” (Id. at 2) Although Plaintiff also stated some of his legal materials were still missing,

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he did not indicate whether any of the missing materials had anything to do with this case.

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The Court, therefore, denied the motion because Plaintiff failed “to explain how the

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confiscation of his legal materials until September 18, 2013 [made] it ‘impossible’ for him

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to comply with the deadlines in the scheduling order,” as he claimed. (Doc. 60 at 2) The

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Court further explained that Plaintiff failed “to identify any documents that were not returned

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to him or explain how the failure to return certain documents has prevented him from

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complying with the scheduling order.” (Id.)
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Plaintiff

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The primary argument of Plaintiff’s motion to compel, despite the title given to it by

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Plaintiff, is to again re-urge an extension of the deadlines in the scheduling order. A

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scheduling order “may be modified only for good cause and with the judge’s consent.”

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Fed.R.Civ.P. 16(b)(4). For purposes of this rule, “good cause” means the scheduling

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deadlines cannot be met despite the party’s diligence. Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 609 (9th Cir. 1992) (citing 6A Wright, Miller & Kane, Federal Practice and

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Procedure § 1522.1 at 231 (2d ed. 1990)). “The pretrial schedule may be modified if it

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cannot reasonably be met despite the diligence of the party seeking the extension. If the party

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seeking the modification was not diligent, the inquiry should end and the motion to modify

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should not be granted.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087

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(9th Cir. 2002) (citation and internal quotation marks omitted).

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Here, Plaintiff presents many of the same arguments he presented in his prior motion

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to extend the scheduling order deadlines. As before, Plaintiff fails to demonstrate he could

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not meet the deadlines despite acting diligently. For example, as noted above, Plaintiff’s

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previous motion to extend the deadlines was filed on November 26, 2013, approximately one

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week before the discovery request deadline. Plaintiff fails to show why he could not have

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completed and served his discovery requests at that time rather than waiting until January 14,

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2014. Plaintiff claims he was submitting administrative grievances to challenge his transfers

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and to get all of his property back. He fails to show, however, that he could not also have

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complied with the scheduling order deadlines. For these reasons, the Court finds Plaintiff

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has failed to show good cause to modify the deadlines in the scheduling order. His motions

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will, therefore, be denied.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion to Modify Deadlines, doc. 66, and

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Plaintiff’s Motion to Compel Discovery, doc. 67, are DENIED.

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DATED this 24th day of June, 2014.

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