Calloway v. Veal et al

Filing 221

ORDER DENYING Plaintiff's 203 Motion in Limine requesting further Discovery and New Trial Date, signed by Chief Judge Lawrence J. O'Neill on 1/20/17. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI J. CALLOWAY,

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Plaintiff,

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vs.

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C/O HAYWARD and

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1:08-cv-01896-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION IN LIMINE REQUESTING
FURTHER DISCOVERY AND NEW
TRIAL DATE
(ECF No. 203.)

C/O OAKS,

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Defendants.

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I.

BACKGROUND

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

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pauperis with this civil rights action under 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on December 10, 2008. (ECF No. 1.) This action now proceeds with

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Plaintiff’s Third Amended Complaint filed on October 5, 2009, against defendants C/O

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Hayward and C/O Oaks, for use of excessive force in violation of the Eighth Amendment to the

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U.S. Constitution. (ECF No. 20.)

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This case is scheduled for jury trial to commence on January 31, 2017 at 8:30 a.m.

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before District Judge Lawrence J. O’Neill. On January 9, 2017, Plaintiff filed a mislabeled
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motion in limine in which he requested to reopen discovery and continue the trial. (ECF No.

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203.) On January 17, 2017, Defendants filed an opposition. (ECF No. 216.)

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II.

PLAINTIFF’S MOTION IN LIMINE

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A.

Motion to Modify Scheduling Order -- Legal Standard

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

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16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

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modification of a scheduling order must generally show that even with the exercise of due

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diligence, they cannot meet the requirement of the order. Id. The Court may also consider the

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prejudice to the party opposing the modification. Id. If the party seeking to amend the

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scheduling order fails to show due diligence the inquiry should end and the Court should not

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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

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(9th Cir. 2002). The court has broad discretion to permit or deny discovery. See Hallet v.

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Morgan, 296 F.3d 732, 751 (9th Cir. 2001.)
Parties’ Positions

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B.

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Plaintiff requests the court to reopen discovery and reschedule the trial date, because

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Plaintiff asserts that Defendants have not turned over evidence to Plaintiff throughout discovery

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and the pretrial phase. Plaintiff seeks time to discover “personnel records, arrest records,

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felony convictions, dismissed claims, unrelated claims, individual claims, and Defendants

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involvement in other lawsuits or incidents alleging excessive force and CDCR indemnification

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of Defendants or [their] witnesses for any adverse judgment.” (ECF No. 203 at 2:14-20.)

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Plaintiff argues that if this case goes to trial without Plaintiff viewing pertinent documents, he

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will be disadvantaged in his ability to cross-examine witnesses and impeach testimony.

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Plaintiff contends that Defendants deliberately withheld discovery to delay the case and thwart

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justice.

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In opposition, Defendants argue there is no good cause to reopen discovery for Plaintiff

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to obtain the information he seeks, because Plaintiff has not been diligent in seeking the

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requested information. Defendants assert that none of Plaintiff’s earlier discovery requests
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included requests for information about Defendants’ purported felony convictions, arrest

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records, or CDCR’s indemnification of Defendants for any adverse judgment, and Plaintiff has

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not shown how the information would handicap his ability to cross examine witnesses at trial.

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Defendants assert that the court already gave Plaintiff an opportunity to provide a compelling

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need for information about dismissed claims, unrelated claims, and individual claims, and

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Plaintiff failed to respond, so the court determined that the discovery phase had concluded.

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(Sept. 27, 2012 Order, ECF No. 74 at 3:6-8; Nov. 15, 2012 Order, ECF No. 75 at 1:18-24.)

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Defendants also argue that Plaintiff has not shown that the information he seeks exists or is

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relevant and admissible. Defendants argue that reopening discovery and delaying trial would

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unfairly prejudice Defendants who are ready to proceed and have expended considerable

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resources in preparing for trial on January 31.

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C.

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Plaintiff has not shown that even with the exercise of due diligence, he could not meet

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the requirements of the court’s scheduling order. On June 14, 2011 (five and one-half years

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ago) the court issued a discovery and scheduling order, which established a deadline of

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February 14, 2012 for the parties to complete discovery, including motions to compel. (ECF

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No. 31.) On April 25, 2012, Plaintiff filed a motion to reopen discovery and serve new

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discovery requests on Defendants. (ECF No. 62.) On September 27, 2012, the court denied the

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motion to reopen discovery, without prejudice to renewal of the motion within thirty days, with

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submission of copies of the proposed discovery requests and information explaining Plaintiff’s

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intent. (ECF No. 74.) Plaintiff did not renew the motion, and the discovery phase was closed.

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(ECF No. 75.) Plaintiff does not explain why he did not renew his motion to pursue further

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discovery following the court’s order of September 27, 2012.

Discussion

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This case was filed more than seven years ago, on December 10, 2008. (ECF No. 1.)

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Plaintiff has had ample time and opportunity to conduct discovery, and Defendants would be

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unduly prejudiced if the January 31, 2017 trial were rescheduled at this late stage of the

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proceedings. Therefore, Plaintiff’s motion in limine shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion in limine

filed on January 9, 2017, is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

January 20, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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