Hasan v. Johnson
Filing
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ORDER signed by Magistrate Judge Gary S. Austin on 2/29/2012 granting 45 Motion to modify scheduling order to extend deadline for filing pretrial despositive motions. (Dispositive Motions filed by 4/16/2012). (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAWWAAD HASAN,
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Plaintiff,
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1:08-cv-00381-GSA-PC
ORDER GRANTING DEFENDANT'S
MOTION TO MODIFY SCHEDULING
ORDER TO EXTEND DEADLINE FOR
FILING PRETRIAL DISPOSITIVE MOTIONS
(Doc. 27.)
v.
B. JOHNSON,
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New Dispositive Motions Deadline:
April 16, 2012
Defendant.
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I.
BACKGROUND
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Jawwaad Hasan (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s original
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Complaint filed on March 17, 2008, against defendant Correctional Officer B. Johnson
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(“Defendant”) for use of excessive force in violation of the Eighth Amendment.1 (Doc. 1.)
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On April 21, 2011, the Court issued a Discovery/Scheduling Order establishing a deadline
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of March 1, 2012, for the parties to file pretrial dispositive motions. (Doc. 27.) On February 28,
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2012, Defendant filed a motion to modify the Scheduling Order to extend the deadline for filing
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On October 20, 2010, the Court dismissed the Doe defendants, and Plaintiff's claim based on supervisory
liability, from this action based on Plaintiff’s failure to state a claim. (Doc. 19.) On February 13, 2012, the Court
dismissed Plaintiff's state law claims from this action via Defendant's motion to dismiss. (Doc. 43.)
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pretrial dispositive motions. (Doc. 45.) Defendant's motion to modify the Scheduling Order is now
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before the Court.
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II.
MOTION TO MODIFY SCHEDULING ORDER
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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),
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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975
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F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a
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scheduling order must generally show that even with the exercise of due diligence, they cannot meet
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the requirement of the order. Id. The court may also consider the prejudice to the party opposing
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the modification. Id. 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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Defendant requests an extension of the dispositive motions deadline of March 1, 2012,
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established by the Court's Discovery/Scheduling Order in this action, to allow him to file a properly
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supported motion for summary judgment. Defendant presents evidence that his counsel ("Counsel")
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has been working diligently to complete a dispositive motion in this case. Counsel was assigned this
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case on October 26, 2011. (Declaration Jarhett Blonien at ¶2.) Counsel took Plaintiff' s deposition
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on December 21, 2011, received the deposition transcript from the court reporter on January 16,
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2012, and then diligently commenced preparing a motion for summary judgment on Defendant's
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behalf. Id. However, Counsel needs additional time to acquire declarations from his client and other
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witnesses who have been difficult to reach due to their varied work schedules and unavailability.
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Id. at ¶3. Defendant also provides evidence that Counsel is currently working on many cases with
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immediate deadlines, which has limited Counsel's ability to draft a dispositive motion in this case.
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Id. at ¶4.
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The Court finds that Defendant has shown due diligence in attempting to prepare and file a
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motion for summary judgment by the March 1, 2012 dispositive motions deadline established by the
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Court's Scheduling Order. Therefore, good cause appearing, Defendant's motion to modify the
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Scheduling Order shall be granted.
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III.
CONCLUSION
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Based on the foregoing, IT IS HEREBY ORDERED that:
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1.
Defendant’s motion to modify the Court's Scheduling Order is GRANTED;
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2.
The NEW DEADLINE for the parties to file pretrial dispositive motions is April 16,
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2012; and
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All other provisions of the Court's April 21, 2011 Scheduling Order remain the same
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IT IS SO ORDERED.
Dated:
6i0kij
February 29, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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