Hendon v. Baroya et al

Filing 162

ORDER Denying Motion To Reopen Discovery, Without Prejudice (Doc. 161 ), signed by Magistrate Judge Gary S. Austin on 3/31/2015. (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-GSA-PC

CARLOS HENDON,
Plaintiff,

ORDER DENYING MOTION TO REOPEN
DISCOVERY, WITHOUT PREJUDICE
(Doc. 161.)

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,
Defendants.

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Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights

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action under 42 U.S.C. § 1983. The parties to this action have consented to Magistrate Judge

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jurisdiction pursuant to 28 U.S.C. ' 636(c) and on March 20, 2015, the case was reassigned to

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the undersigned to conduct any and all proceedings in the case, including trial and entry of final

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judgment.

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telephonic status hearing to be held before the undersigned, Magistrate Judge Gary S. Austin,

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on April 13, 2015, at 10:30 a.m.

(Docs. 4, 155, 158.) This case is scheduled for trial on July 7, 2015, with a

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On March 27, 2015, Plaintiff filed a motion to reopen discovery, which is now before

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the court. (Doc. 161.) Plaintiff asserts that some of his legal materials, including documents

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obtained during discovery, were taken from him by prison officials after discovery was closed.

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Plaintiff argues that the only way for him to recover the documents is to reopen discovery.

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Plaintiff contends that he will be unable to submit his trial exhibits by the trial date.
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The deadline to conduct discovery in this case expired on August 1, 2012, and the

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deadline has not been extended. (Doc. 88.) To reopen discovery at this juncture would require

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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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The court finds that Plaintiff used due diligence in completing discovery before the

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court’s discovery deadline expired.

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proceedings, on the eve of trial, would likely prejudice Defendants who are anticipating and

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preparing for trial. This case was filed nearly ten years ago and should not be delayed any

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longer than necessary. Therefore, Plaintiff’s motion shall be denied, without prejudice to

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renewal of the motion at a later stage of the proceedings.

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However, reopening discovery at this stage of the

Accordingly, Plaintiff’s motion to reopen discovery, filed on March 27, 2015, is
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

March 31, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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