Ackley v. Carroll et al

Filing 55

ORDER Denying Plaintiff's 51 Motion to Stay Action and Reopen Discovery signed by Magistrate Judge Sandra M. Snyder on 05/17/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DONALD J. ACKLEY,

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CASE NO. 1:06-cv-00771-AWI-SMS PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION TO
STAY ACTION AND REOPEN DISCOVERY

v.
(ECF No. 51)

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D. CARROLL, et al.,

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Defendants.
/

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Plaintiff Donald J. Ackley (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s complaint, filed June 19, 2006, against Defendants Carroll, Blevin, Uribe, and Wright for

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excessive force in violation of the Eighth Amendment, and Defendant Carroll for retaliation in

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violation of the First Amendment. (ECF No. 1.) A discovery and scheduling order was issued

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opening discovery on May 20, 2009. (ECF No. 21.) On April 15, 2010, Plaintiff filed a motion for

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an extension of time to complete discovery, which was denied on June 29, 2010. (ECF Nos. 34, 38.)

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On November 29, 2010, Defendants filed a motion for summary judgment. (ECF No. 47.) Plaintiff

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filed an opposition and a request to stay Defendants motion and conduct additional discovery on

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December 22, 2010.1 (ECF Nos. 50, 51.) Defendants filed a request for an extension of time to file

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a reply, which was granted, however no reply was filed.

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Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment by the
second informational order filed February 4, 2009. Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (ECF No.
13.)

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In his motion Plaintiff alleges that Defendants motion for summary judgment is untimely and

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moves to have it disregarded. On October 25, 2010, the Court issued an order granting Defendants

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a thirty day extension of time to file dispositive motions.2 Plaintiff alleges that since Defendants

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motion was not filed until November 29, 2010, it was four days late. However, due to Court

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holidays, Defendants’ motion was not due until November 29, 2010. Fed. R. Civ. Proc. 6. Since

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the motion was filed November 29, 2010, it was timely and Plaintiff’s motion shall be denied.

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Plaintiff also requests that if the motion for summary judgment proceeds he be allowed to

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conduct additional discovery to oppose the motion. Plaintiff states that additional discovery is

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necessary so he can prove that Defendants lied under oath in their declarations. He wishes to

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subpoena inmate witnesses who observed the attack, the inmates who attacked him to determine why

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they acted as they did, and a physician to examine his medical records to determine how his eye was

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injured.

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The deadline for the completion of all discovery in this action was January 20, 2010.

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and good

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cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). If the party seeking to amend the scheduling order fails to show due diligence

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the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern

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California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

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The scheduling order was issued on May 20, 2009, and Plaintiff had eight months to conduct

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discovery. Plaintiff’s prior motion for additional time to conduct discovery was denied because

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Plaintiff failed to show good cause. Plaintiff is requesting to reopen discovery to obtain declarations

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that should have been anticipated from the inception of this action. Plaintiff has failed to show that

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he has made any attempts to obtain the information requested while discovery was open and he did

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not file a motion to extend discovery prior to the discovery deadline. Plaintiff’s current motion, filed

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over eleven months after discovery in this action has closed, fails to show diligence in attempting

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to comply with the scheduling order.

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The date Plaintiff uses to calculate the due date is the date Defendants filed their motion for an extension of
time, rather than the date the Court granted Defendants’ motion.

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To allow a modification of the scheduling order without good cause would render scheduling

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orders essentially meaningless, and directly interfere with courts’ attempts to manage their dockets

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and with the standard course of litigation in actions such as this. Johnson, 975 F.2d at 610 (“A

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scheduling order is not a frivolous piece of paper, idly entered . . . .” (internal quotations and citation

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omitted)). Plaintiff has not established good cause to modify the scheduling order and his motion

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to reopen discovery shall be denied.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to request a stay to conduct
discovery filed December 22, 2010, is DENIED.

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IT IS SO ORDERED.

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Dated:
icido3

May 16, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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