Bryant v. Gallagher et al

Filing 134

ORDER DENYING Plaintiff's 113 Motion for Order Reopening Discovery; ORDER DENYING Plaintiff's 120 Motion Requesting the Court File and Respond/Rule on Attached Motion as Moot, signed by Magistrate Judge Barbara A. McAuliffe on 4/28/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT

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Plaintiff,
v.
P. GALLAGHER, et al.,

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Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
ORDER REOPENING DISCOVERY
(ECF No. 113)
ORDER DENYING PLAINTIFF’S MOTION
REQUESTING THE COURT FILE AND
RESPOND/RULE ON ATTACHED MOTION AS
MOOT
(ECF NO. 120)

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I.

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Plaintiff Kevin Darnell Bryant (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Background

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s first amended complaint, filed on July 5, 2011, against Defendant Romero for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment; and against Defendants

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Gallagher and Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to

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protect in violation of the Eighth Amendment. Pursuant to a discovery and scheduling order, the

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discovery deadline in this action expired on October 22, 2012. (ECF No. 50.)

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On October 31, 2012, the undersigned issued findings and recommendations that Plaintiff’s

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motion for law library access be denied and that Plaintiff’s motion for a forty-five day extension of the

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discovery cut-off be denied as a sanction for Plaintiff’s motion for court order. (ECF No. 81.) The

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District Judge adopted the findings and recommendations on November 20, 2012. (ECF No. 87.)

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On November 2, 2012, Plaintiff filed a motion for an extension of time to serve written

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discovery on non-parties. (ECF No. 82.) The Court denied the motion as untimely because it was

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signed and filed after the discovery deadline had expired. (ECF No. 86.)

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On December 19, 2012, the Court granted Defendants’ request to vacate the deadline for filing
dispositive motions based on a pending motion to compel. (ECF No. 93.)
On July 12, 2013, Plaintiff filed the instant motion requesting the reopening of discovery for an

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additional 180 days in this action. (ECF Nos. 113, 114.) On January 27, 2014, the Court directed

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Defendants to file a response to the motion. (ECF No. 122.) Following extensions of time,

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Defendants opposed the motion on March 3, 2014. (ECF No. 129.) Although Plaintiff was granted

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two extensions of time to reply by April 22, 2014, Plaintiff did not file any reply. (ECF Nos. 130,

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132.) The motion is deemed submitted. Local Rule 230(l).

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On December 6, 2013, Plaintiff filed a motion requesting that the Court file and rule on his

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motion to reopen discovery. (ECF No. 120.) Defendants did not respond and the motion also is

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deemed submitted. Local Rule 230(l).

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II.

Motion to Reopen Discovery

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably be met

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despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry

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should end. Id.

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Plaintiff contends that the reopening of discovery is warranted based on two primary grounds.

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First, Plaintiff contends that he was informed by his KVSP Correctional Counselor, Mr. Haro, that

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several additional undisclosed internal investigations were conducted into the incident that is the
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subject matter of this action. Second, Plaintiff claims that discovery should be reopened based on the

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deliberate obstruction of his court access by KVSP officials and the inadequacy of the prison law

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library. Plaintiff further asserts that he has been physically and mentally abused by prison officials.

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Defendants counter that Plaintiff’s motion is inaccurate. First, Plaintiff’s correctional

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counselor, Mr. Haro, verifies that he never spoke to Plaintiff about any internal investigations relating

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to this case or any other. (ECF No. 129-1, Declaration of Haro ¶ 3.) Mr. Haro also indicates that he

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would never talk to any inmate, including Plaintiff, about the status of an investigation or even

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acknowledge the existence of any such investigation. (Id.) Second, Plaintiff’s complaint about the

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inability to access the law library and courts is unsupported because during discovery Plaintiff filed

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many motions with case citations, photocopied documents and other evidence of legal research (see,

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e.g., ECF Nos. 51, 55, 58, 59, 66, 67, 71, 72, 78, 79 and 80). Defendants assert that Plaintiff has not

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presented any grounds for the Court to reopen discovery.

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Having considered the parties’ arguments, the Court does not find any basis to reopen

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discovery or any demonstrated diligence. Plaintiff’s reasons for seeking the reopening of discovery

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are unsupported by the evidence and record in this matter. As an initial matter, Plaintiff’s assertion

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that he has learned of several additional undisclosed internal investigations from his correctional

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counselor is contradicted by the sworn declaration submitted by his correctional counselor. In fact,

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Plaintiff’s correctional counselor has denied ever providing Plaintiff with information related to any

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internal investigations. Further, Plaintiff’s assertion regarding law library and court access is

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undermined by record evidence that he has been able to pursue multiple motions, several of which

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were supported by legal research and case citations, and he has been able to obtain numerous

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extensions of time, when necessary, to pursue his claims in this matter. There is no indication that

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Plaintiff’s purported inability to access the law library affected his ability to pursue discovery in this

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matter before the cut-off date in this action. Accordingly, Plaintiff’s motion to reopen discovery shall

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be denied.

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III.

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As noted above, on December 6, 2013, Plaintiff filed a motion requesting that the Court file

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Motion Requesting the Court File and Respond/Rule on Attached Motion

and rule on his motion to reopen discovery. (ECF No. 120.) Plaintiff’s original motion to reopen
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discovery was filed into the Court’s docket on July 12, 2013. (ECF No. 113.) The Court is now ruling

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on the motion. As such, Plaintiff’s request that the motion to reopen discovery be filed and ruled upon

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is moot and shall be denied.

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IV.

Conclusion and Order

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For the reasons stated, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to reopen discovery, filed on July 12, 2013, is DENIED; and

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2. Plaintiff’s motion requesting the court file and respond/rule on attached motion is DENIED
as moot.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 28, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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