Bryant v. Knight et al

Filing 45

ORDER GRANTING Defendants' 43 Motion for Modification of Scheduling Order; Unenumerated 12(b) Motion Deadline: August 31, 2011 signed by Magistrate Judge Dennis L. Beck on 7/21/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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8 JAMES E. BRYANT,
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CASE NO. 1:09-CV-01367-OWW-DLB PC
Plaintiff,

ORDER GRANTING DEFENDANTS’
MOTION FOR MODIFICATION OF
SCHEDULING ORDER

v.

11 KNIGHT, et al.,
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(DOC. 43)
Defendants.

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Unenumerated 12(b) Motion Deadline: August
31, 2011
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Plaintiff James E. Bryant (“Plaintiff”) is a prisoner proceeding pro se and in forma

16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
17 against Defendants Knight and Davis. Pending before the Court is Defendants’ motion for
18 modification of the discovery and scheduling order, filed July 15, 2011. Doc. 43.
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On May 17, 2011, the Court issued a discovery and scheduling order, setting an

20 unenumerated 12(b) motion filing deadline of July 17, 2011. Defendants seek a modification up
21 to and including August 31, 2011. Defendants’ counsel contends that two of Plaintiff’s three
22 claims were possibly not administratively exhausted. Defendants’ counsel contends that he will
23 not be able to meet the deadline because of his heavy involvement in discovery in another action,
24 and because he needs time to obtain and review additional administrative grievances, if any,
25 before preparing the motion.
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The decision to modify a scheduling order is within the broad discretion of the district

27 court. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller
28 v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). Pursuant to Federal Rule of Civil
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1 Procedure 16, a pretrial scheduling order “shall not be modified except upon a showing of good
2 cause,” and leave of court. Fed. R. Civ. P. 16(b)(4); Zivkovic v. S. Cal. Edison Co., 302 F.3d
3 1080, 1087-88 (9th Cir. 2002). Although “the existence or degree of prejudice to the party
4 opposing the modification might supply additional reasons to deny a motion, the focus of the
5 inquiry is upon the moving party’s reasons for seeking modification.” Johnson, 975 F.2d at 609.
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Good cause having been presented, it is HEREBY ORDERED that Defendants’ motion

7 for modification of the scheduling order, filed July 15, 2011, is GRANTED. The deadline for
8 filing an unenumerated 12(b) motion is August 31, 2011.1
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IT IS SO ORDERED.

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Dated:
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July 21, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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Defendants’ counsel also requests an extension of time to file an opposition to
25 Plaintiff’s motion for sanctions, filed June 22, 2011. Doc. 40. Plaintiff moves for sanctions,
26 contending that Defendants’ answer contains a false statement that Plaintiff did not exhaust
administrative remedies. Defendants’ motion for failure to exhaust administrative remedies is
27 directly related to Plaintiff’s motion. Good cause having been shown, Defendants’ motion for an
extension of time to file an opposition to Plaintiff’s motion for sanctions is GRANTED.
28 Defendants are granted up to and including August 31, 2011 in which to file their opposition.
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