Stocker v. Warden, et al.

Filing 38

ORDER DENYING 33 Motion for Leave to Amend the Scheduling Order for the Purpose of Propounding Limited Discovery to Ascertain Identities of Additional Defendants, signed by Magistrate Judge Dennis L. Beck on 1/13/2009. (Sondheim, M)

1 2 3 4 5 6 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 Plaintiff Johnie Stocker ("Plaintiff") filed the instant Motion for Leave to Amend the 19 Scheduling Order on December 8, 2008. The motion was heard on January 9, 2009, before the 20 Honorable Dennis L. Beck, United States Magistrate Judge. Attorney Angelina Chew appeared 21 telephonically on behalf of Plaintiff. Jill Scally appeared on behalf of Defendants. 22 PROCEDURAL BACKGROUND 23 Plaintiff, initially proceeding pro se, filed a civil rights action on April 17, 2007. On July 30, 24 2007, Plaintiff, through counsel, filed a First Amended Complaint. The complaint involves 25 allegations of inadequate and deliberately indifferent medical care and rehabilitation provided to 26 Plaintiff after he dislocated his finger while incarcerated at Kern Valley State Prison. 27 On December 28, 2007, the Court issued a scheduling order setting the discovery deadline for 28
U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia

UNITED STATES DISTRICT COURT

) ) ) Plaintiff, ) ) v. ) ) ) WARDEN, et. al., ) ) Defendants. ) ____________________________________) JOHNIE L. STOCKER,

1:07-cv-00589 LJO DLB (PC) ORDER DENYING MOTION FOR LEAVE TO AMEND THE SCHEDULING ORDER FOR THE PURPOSE OF PROPOUNDING LIMITED DISCOVERY TO ASCERTAIN IDENTITIES OF ADDITIONAL DEFENDANTS (Doc. 33)

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August 20, 2008. On August 4, 2008, the parties stipulated to extend the discovery deadline to schedule the deposition of Plaintiff and the depositions of Defendants Zamora, Grannis, Alomari, Smith and Akanno. On August 8, 2008, the Court amended the scheduling order to allow the depositions to be completed by November 30, 2008. On October 16, 2008, Plaintiff filed an ex parte application to extend the deadline to file pretrial dispositive motions. Defendants opposed the application. On October 23, 2008, the Court amended to the scheduling order to extend the deadline for pre-trial dispositive motions to January 30, 2009. On December 8, 2008, Plaintiff filed the instant motion to amend the scheduling order. Plaintiff explains that in recent depositions taken in November 2008, defendants directly involved in providing medical care to Plaintiff have disavowed any responsibility for scheduling timely medical appointments and have disclaimed responsibility for addressing the medical delays Plaintiff experienced or for ensuring that he received the proper course of medical treatment. Plaintiff further explains that defendants have claimed such duties rest with others, such as "nurses," "nursing supervisors," or the "Chief Medical Officer." For example, Plaintiff refers to the deposition testimony of Dr. Jonathan Akanno, who reportedly testified that he was not responsible for scheduling the inmates for appointments. Instead, Dr. Akanno indicated that nurses and the nursing supervisor(s) were responsible for scheduling patients to see doctors. According to Plaintiff, Dr. Akanno further testified that the Chief Medical Officer is responsible for oversight of all clinical aspects of medical care at the prison, but it was not clear from his testimony who held the position at the time of Plaintiff's injury. Plaintiff contends that he could not have known of the "disavowals" or of the alleged hierarchy of responsibility before taking defendants' depositions. Plaintiff seeks leave to serve limited discovery for the sole purpose of identifying those nurses, nursing supervisors and the Chief Medical Officer identified by defendants in their depositions. Plaintiff indicates that he thereafter may seek leave from the Court to amend the complaint to name additional defendants and to take

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depositions of those additional defendants. In a footnote, however, Plaintiff requests that the Court amend the Discovery/Scheduling Order to grant him leave to (1) propound additional limited discovery to ascertain the identities of additional defendants; (2) add the additional persons identified as defendants, if appropriate; and (3) take the depositions of those additional defendants. On December 22, 2008, Defendants filed an opposition to Plaintiff's motion for leave to amend the scheduling order. On January 2, 2009, Plaintiff filed a reply. DISCUSSION A. Federal Rule of Civil Procedure 16 Plaintiff moves pursuant to Rule 16(b) to amend the scheduling order. Federal Rule of Civil Procedure 16(b) provides that "[a] schedule shall not be modified except upon a showing of good cause . . . ." The inquiry focuses on the "reasonable diligence of the moving party." Noyes v. Kelly Services, 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007). "The pretrial schedule may be modified if it cannot reasonably be met despite the diligence of the party seeking the extension." Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal quotation marks omitted). "If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted." Id. Plaintiff contends that he diligently pursued the information relevant to his case and diligently filed the motion to amend after deposing defendants. Although Plaintiff filed the instant motion shortly after deposing defendants, the Court finds that Plaintiff did not timely pursue discovery in this matter and was not diligent. The Court issued its discovery/scheduling order in December 2007. Pursuant to that order, the parties were required to complete discovery by August 20, 2008. However, there is no indication in the record that Plaintiff's counsel attempted to schedule the depositions of defendants prior to July 2008.1 See Declaration of Angelina E. Chew in Support of Reply ("Chew Dec."), ¶ 4. Further, it appears that Plaintiff's counsel likely did not make any attempts to schedule defendants' depositions until October 2008, after the deadline was extended.

D e f e n d a n t s also pointed out at hearing that Plaintiff did not serve written discovery on the defendant doctors until J u n e 2008.

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At the hearing, Defense counsel reported that her paralegal contacted Plaintiff's counsel in July 2008 regarding the deposition of Plaintiff. As one of Plaintiff's attorneys would be gone in August 2008, the parties stipulated to extend the discovery cut-off date to November 30, 2008, to allow for the deposition of Plaintiff and defendants. Thereafter, defense counsel indicated that Plaintiff's counsel first contacted her regarding defendants' depositions in October 2008. Plaintiff did not offer any evidence to refute this contention or to demonstrate that his attorneys contacted defense counsel regarding the deposition of defendants prior to October 2008. The depositions were scheduled in November 2008, shortly before the close of discovery. Insofar as Plaintiff asserts that the failure to discover the additional defendants is due to the "limitations of his incarceration," this assertion does not explain the failure to take defendants' depositions or conduct other discovery in a timely manner. As Defendants note, Plaintiff's counsel is not incarcerated and there appear to be four attorneys assigned to his case. Although one of Plaintiff's attorneys was unavailable in August 2008 for depositions, there is no indication that Plaintiff's other attorneys were unavailable to complete the depositions in August 2008. There also is no evidence that Plaintiff's attorneys were unavailable in September and October 2008. Plaintiff has not demonstrated diligence in pursuing discovery through the deposition of defendants. Accordingly, Plaintiff's motion to amend the scheduling order is DENIED.

IT IS SO ORDERED. Dated: 3b142a

January 13, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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