Bryant v. Gallagher et al

Filing 241

ORDER Denying Plaintiff's 240 First Motion for Modification of the Court's Second Scheduling Order signed by Magistrate Judge Barbara A. McAuliffe on 07/06/2016. (Flores, E)

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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.
GALLAGHER, et al.,
Defendants.

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Case No. 1:11-cv-00446-BAM (PC)
ORDER DENYING PLAINTIFF’S FIRST MOTION
FOR MODIFICATION OF THE COURT’S
SECOND SCHEDULING ORDER
(ECF No. 240)
Plaintiff’s Pretrial Statement and Motion(s) for
Incarcerated Witnesses Due: July 15, 2016
Defendants’ Pretrial Statement and Opposition(s) to
Motion(s) for Incarcerated Witnesses Due: July 29,
2016

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

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have consented to

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magistrate judge jurisdiction. (ECF Nos. 7, 231.) This action proceeds on Plaintiff’s claims against

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Defendant Romero for deliberate indifference to serious medical needs in violation of the Eighth

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Amendment, and against Defendants Gallagher and Romero for conspiracy, retaliation in violation of

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the First Amendment, and failure to protect in violation of the Eighth Amendment.

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On March 30, 2016, the Court issued its second scheduling order in this matter, setting forth

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various filing requirements and deadlines, including for Plaintiff to file his pretrial statement and

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motions for the attendance of incarcerated witnesses no later than July 6, 2016. (ECF No. 234.)

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Currently before the Court is Plaintiff’s motion to modify that deadline, filed on June 29, 2016. (ECF

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No. 240.) Plaintiff seeks a sixty (60) day extension of time to file his pretrial statements and motions

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for attendance of incarcerated witnesses.

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Plaintiff asserts that he cannot meet these deadlines because (1) he was on lockdown for some

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unspecified period in April and May; (2) he has not been able to access the law library in May and

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June for the full 4 hours he is entitled to due to his PLU status (his submissions show he is given some

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access, but not a full 4 hours at all times); and (3) he needs the full name and addresses of certain

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witnesses that Defendants were ordered to disclose to him to draft his motions for the attendance of

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witnesses.

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Plaintiff has not shown the necessary good cause to grant his sixty (60) day requested

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extension of time. Fed. R. Civ. P. 16(b)(4). When the second scheduling order was issued in this

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matter months ago, on March 30, 2016, Plaintiff was provided Local Rule 281, which set forth the

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information necessary to prepare his pretrial statement. The pretrial statement largely calls for factual

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information, descriptions of anticipated evidence and witnesses, and under Local Rule 281(a)(8), it is

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explained that extended legal argument is not required. Thus, Plaintiff does not necessitate the use of a

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law library or legal research materials for preparation of the pretrial statement. Plaintiff’s reliance on

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getting less than four full hours of legal library access at certain times does not show good cause for

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his failure to comply with that filing that statement by the deadline, especially when he has admitted to

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being provided some law library access.

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Similarly, the instructions and standards for seeking incarcerated witnesses was set forth for

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the parties in the second scheduling order, and it shows that the information needed to prepare such

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motions is factual, such as describing the potential witness’s knowledge of the events at issue,

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submitting declarations of the witness’s knowledge, and provided identifying information. Moreover,

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although Plaintiff cites two lockdowns, he does not describe how long these lockdowns lasted and how

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they interfered with his preparation of the necessary filings in this matter, other than describing some

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limitations on law library access, which does not show good cause for an extension here for the

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reasons explained.

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To the extent Plaintiff alleges that he is waiting on the address information Defendants were
ordered to provide him to prepare his motions for incarcerated witnesses, Plaintiff is informed that the

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Court is aware it granted Defendants some time to provide the full addresses of the five incarcerated

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witnesses at issue. It will not deny a motion for the attendance of any of those five potential

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incarcerated witnesses (Vargas, Levels, Willis, Contreras, and Lopez) solely for the failure to provide

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the full address of the institutions at which they are currently housed.

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Plaintiff will be provided a few additional days to receive this order and comply with its

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requirements to file his pretrial statement and any motion(s) for the attendance of incarcerated

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witnesses, as required by the second scheduling order. The deadlines for Defendants that correspond to

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the brief extension being granted to Plaintiff will also be adjusted. Plaintiff’s request for a sixty (60)

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day extension of the second scheduling order is otherwise denied for lack of good cause shown.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s first motion for a modification of the second scheduling order (ECF No. 240)

is DENIED;
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Plaintiff shall serve and file a pretrial statement and any motion(s) for attendance of

incarcerated witnesses, as described in the second scheduling order, on or before July 15, 2016;
3.

Defendants shall serve and file a pretrial statement and any oppositions to any

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motion(s) for incarcerated witnesses, as described in the second scheduling order, on or before July

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29, 2016; and

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4.

All other deadlines, hearing dates, and trial dates set forth in the second scheduling

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order shall stand.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 6, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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