Hendon v. Baroya et al

Filing 157

ORDER Denying Amended Motion To Compel (Doc. 156 ), signed by Magistrate Judge Gary S. Austin on 3/18/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:05-cv-01247-AWI-GSA-PC

CARLOS HENDON,
Plaintiff,

ORDER DENYING AMENDED MOTION
TO COMPEL
(Doc. 156.)

vs.

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DR. NORMA REIDMAN,

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DR. JERRY Q. HOPPE,

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DR. I. BAROYA,

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DR. LUONG PHAM, and

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DR. DAM NGUYET,

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Defendants.

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Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights
action under 42 U.S.C. § 1983. This case is scheduled for trial before District Judge Anthony
W. Ishii on July 7, 2015.
On March 16, 2015, Plaintiff filed an amended motion to compel and a request for a
blank subpoena. (Doc. 156.) Plaintiff seeks a court order compelling the custodian of medical
records at California State Prison-Sacramento, where Plaintiff is presently incarcerated, to
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produce all of Plaintiff’s medical records from June 2002 through December 2003. Plaintiff

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seeks the records to use as evidence at trial. Plaintiff asserts that he has made numerous

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requests to prison officials for the records since June 2014, and more recently on February 20,

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2015, without success. Plaintiff also requests the court to send him a blank subpoena duces

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tecum.

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Plaintiff’s amended motion is untimely, and he has not shown good cause for the court

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to issue the order he seeks or to send him a blank subpoena. Discovery is closed for this action.

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The Scheduling Order of March 27, 2012 established a deadline of August 1, 2012 for Plaintiff

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to complete discovery, including the filing of motions to compel, and the deadline has not been
Thus, Plaintiff’s amended motion is untimely. To reopen discovery at

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extended. (Doc. 88.)

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this juncture would require modification of the court’s Scheduling Order.

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Modification of the court’s Scheduling Order requires a showing of good cause, Fed. R.

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Civ. P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party

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seeking the modification of a scheduling order must generally show that even with the exercise

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of due diligence, he or she cannot meet the requirement of the order. Id. If the party seeking to

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amend the scheduling order fails to show due diligence, the inquiry should end and the court

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should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d

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1080, 1087 (9th Cir. 2002). The court may also consider the prejudice to other parties.

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Plaintiff has not demonstrated that with due diligence he could not have completed

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discovery by the August 1, 2012 deadline established by the court’s Scheduling Order. Due to

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the late appearance of defendant Hoppe, the discovery phase in this action lasted nearly three

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years, from September 30, 2009 until August 1, 2012. Plaintiff has not explained why he could

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not complete his discovery requests within the time allowed. Moreover, reopening the

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discovery phase of this action would almost certainly cause the trial to be delayed, which would

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prejudice Defendants who are anticipating trial in July 2015. This case was filed nearly ten

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years ago and should not be delayed any longer. Therefore, Plaintiff’s amended motion to

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compel must be denied.
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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s
amended motion to compel, filed on March 16, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

March 18, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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