Colon v. St. Clair, et al

Filing 91

ORDER GRANTING Defendants' 87 Motion to Reopen Discovery; ORDER Reopening Discovery, for Limited Purpose Described in This Order; ORDER HOLDING Defendants' 74 Motion for Summary Judgment in ABEYANCE Pending Expiration of New Deadlines, signed by Magistrate Judge Gary S. Austin on 3/21/2012. (New Discovery Deadline: 5/31/2012; New Dispositive Motions Deadline: 7/31/2012.) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GILBERT COLON,

1:07-cv-00932-AWI-GSA-PC

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ORDER GRANTING DEFENDANTS'
MOTION TO REOPEN DISCOVERY
(Doc. 87.)

Plaintiff,
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v.
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ORDER REOPENING DISCOVERY, FOR
LIMITED PURPOSE DESCRIBED IN THIS
ORDER

DR. ST. CLAIR, et al.,

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ORDER HOLDING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT IN
ABEYANCE PENDING EXPIRATION OF
NEW DEADLINES
(Doc. 74.)

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New Discovery Deadline - 05-31-2012

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Defendants.

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New Dispositive Motions Deadline - 07-31-2012

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I.

BACKGROUND

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Plaintiff Gilbert Colon (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on June 28, 2007. (Doc. 1.) This action now proceeds on Plaintiff’s

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Amended Complaint filed on June 5, 2008, against defendants Sydenstricker, Peterson, Thomatos,

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and Witwer (“Defendants”), for inadequate medical care in violation of the Eighth Amendment.

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(Doc. 13.)1

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All other claims, and defendants Porter, Grannis, Stogsdill, and St. Clair, were dismissed from this action
by the court on May 27, 2009, based on Plaintiff’s failure to state a claim. (Doc. 16.) On February 10, 2011,
defendant Greenough was dismissed from this action by the court’s order granting Plaintiff’s motion to dismiss
defendant Greenough. (Doc. 66.)

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On February 10, 2011, the court issued a Discovery/Scheduling Order establishing deadlines

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of July 15, 2011 for completion of discovery, including motions to compel, and September 15, 2011

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for the filing of pretrial dispositive motions. (Doc. 69.) On June 22, 2011, Defendants filed a

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motion to compel Plaintiff to participate in his deposition, after Plaintiff had appeared at his

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deposition and refused to answer questions. (Doc. 70.) On September 15, 2011, Defendants filed

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a motion for summary judgment. (Doc. 74.) On February 8, 2012, the court granted Defendants'

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motion to compel, requiring Plaintiff to attend and participate in his deposition. (Doc. 84.) On

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March 9, 2012, Defendants filed a motion to reopen discovery for the limited purpose of taking

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Plaintiff's deposition. (Doc. 87.)

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II.

MOTION TO REOPEN DISCOVERY

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A court may modify a scheduling order for good cause. Fed. R. Civ. P 16(b)(4). This good

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cause standard “primarily considers the diligence of the party seeking the amendment.” Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The district court may modify the

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pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party seeking the

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extension.’” Id.

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Defendants move the court to reopen discovery for the limited purpose of taking Plaintiff's

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deposition. Defendants argue that the discovery phase in this action should be reopened to take

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Plaintiff's deposition, because Plaintiff refused to participate in his deposition set within the original

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discovery period, and Defendants are entitled to ask Plaintiff questions about the facts surrounding

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the basic allegations contained in the Complaint.

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Defendants have shown good cause to reopen discovery. Defendants have demonstrated that

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even with due diligence, they were unable to take Plaintiff's deposition during the original discovery

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period established by the court's Scheduling Order. Defendants are entitled to take Plaintiff's

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deposition at this juncture. Therefore, Defendants' motion shall be granted, and discovery shall be

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reopened for the limited purpose of taking Plaintiff's deposition. The deadline for filing pretrial

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dispositive motions shall also be extended. Further, in light of the extension of the court's deadlines,

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Defendants' motion for summary judgment, filed on September 15, 2011, shall be held in abeyance

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pending expiration of the new deadlines.
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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Defendants' motion to reopen discovery, filed on March 9, 2012, is GRANTED;

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Discovery is now reopened, for the limited purpose of scheduling and taking

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Plaintiff's deposition;
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motions to compel, is May 31, 2012;
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The deadline for all parties in this action to file pretrial dispositive motions is
extended to July 31, 2012;

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The new deadline for the completion of this limited discovery, including filing of

All other provisions of the court's Discovery/Scheduling Order entered on February
10, 2011, remain the same; and

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Defendant's motion for summary judgment, filed on September 15, 2011, is HELD
IN ABEYANCE pending the expiration of the court's new deadlines.

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IT IS SO ORDERED.
Dated:
6i0kij

March 21, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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