Bury v. Clark et al

Filing 42

ORDER GRANTING Plaintiff's 32 Motion for Modification of Scheduling Order, signed by Magistrate Judge Dennis L. Beck on 4/23/2012. Amended Pleadings Deadline: July 6, 2012. (Marrujo, C)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6
EASTERN DISTRICT OF CALIFORNIA
7
8 LARRY BURY,
9
10

CASE NO. 1:10-cv-00196-DLB PC
Plaintiff,

ORDER GRANTING PLAINTIFF’S MOTION
FOR MODIFICATION OF SCHEDULING
ORDER (DOC. 32)

v.

11 KEN CLARK, et al.,
12

Amended Pleadings Deadline: July 6, 2012
Defendants.
/

13
14

Plaintiff Larry Bury (“Plaintiff”) is a prisoner in the custody of the California Department

15 of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding in forma pauperis in this
16 civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s
17 complaint, filed February 8, 2010, against Defendants E. Williams and Moto for violation of the
18 Eighth Amendment. All parties are represented by counsel. Pending before the Court is
19 Plaintiff’s motion to modify the scheduling order, filed March 7, 2012. On March 27, 2012,
20 Defendants filed their opposition. On April 2, 2012, Plaintiff filed his reply. The matter is
21 submitted without oral argument. L.R. 230(g).
22

Plaintiff moves to modify the amended pleading deadline to July 6, 2012. Pl.’s Mem. P.

23 & A. 1:2-2:13.1 Plaintiff’s counsel was appointed on February 28, 2012. Order, Doc. 29.
24 Plaintiff contends that at a minimum, amendment would be in everyone’s interest as the pro se
25
26

1

Plaintiff also moved for the modification of deadlines for discovery, expert disclosures,
27 and pre-trial dispositive motions. Defendants and Plaintiff filed a stipulation regarding these
deadlines. By separate order, the Court approved the stipulation. Thus, Plaintiff’s arguments
28 regarding those portions will not be addressed by this order.
1

1 complaint filed by Plaintiff in this action would be replaced with a pleading that conformed with
2 the Court’s screening order. Pl.’s Mem. P. & A. 1:22 n.2.
3

Defendants contend that Plaintiff has not shown good cause for modification. Defs.’

4 Opp’n, Doc. 36. Plaintiff contends that because of the stipulation, Defendants will not be
5 prejudiced if the deadline to amend pleadings is extended. 2 Pl.’s Reply, Doc 39.
6

The decision to modify a scheduling order is within the broad discretion of the district

7 court. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller
8 v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). Pursuant to Federal Rule of Civil
9 Procedure 16, a pretrial scheduling order “shall not be modified except upon a showing of good
10 cause,” and leave of court. Fed. R. Civ. P. 16(b)(4); Zivkovic v. S. Cal. Edison Co., 302 F.3d
11 1080, 1087-88 (9th Cir. 2002). Although “the existence or degree of prejudice to the party
12 opposing the modification might supply additional reasons to deny a motion, the focus of the
13 inquiry is upon the moving party’s reasons for seeking modification.” Johnson, 975 F.2d at 609.
14

The deadline to amend pleadings was December 7, 2011. However, counsel for Plaintiff

15 was not appointed in this matter until February 28, 2012. Thus, it would have been impossible
16 for counsel to have filed any amended pleadings in this matter prior to the Court’s deadline. The
17 Court finds good cause to modify the schedule.
18

Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to modify the scheduling

19 order, filed March 7, 2012, is granted as stated herein. The deadline to file amended pleadings in
20 this action is on or before July 6, 2012.
21

IT IS SO ORDERED.

22

Dated:
3b142a

April 23, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
2
Defendants stipulated that the new deadline for discovery close more than four months
28 after Plaintiff’s proposed deadline to amend pleadings. Stipulation, Doc. 38.
2