Martinez v. Delio et al

Filing 76

ORDER GRANTING, In Part, and DENYING In Part, Plaintiff's 73 Motion to Extend Discovery Cut-Off Date and 75 Motion to Clarifying Due Diligence, signed by Magistrate Judge Michael J. Seng on 5/15/15. Sixty Day Deadline. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BERNARD MARTINEZ,

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Plaintiff,

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v.
DR. L. A. DELIO, et al.,

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CASE NO. 1:11-cv-01088-LJO-MJS (PC)
ORDER GRANTING, IN PART, AND
DENYING, IN PART, PLAINTIFF’S MOTION
TO EXTEND DISCOVERY CUT-OFF DATE
AND
MOTION
CLARIFYING
DUE
DILIGENCE

Defendants.

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(ECF Nos. 73 & 75)

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I.

PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action filed pursuant to 42 U.S.C. § 1983.

This matter proceeds against

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Defendants Martha Ruiz, Sonia Martinez, and T. Nguyen on an Eighth Amendment

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medical indifference claim.1

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Before the Court is Plaintiff’s motion for enlargement of the discovery order. (ECF

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No. 73.) Defendants oppose the motion. (ECF No. 74.) Plaintiff filed a motion clarifying

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Defendant Nguyen has not yet been served.

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his due diligence in opposition to Defendants’ opposition. (ECF No. 75.) The Court will
construe Plaintiff’s opposition motion as a reply. The matter is deemed submitted. Local
Rule 230(l).
II.

MOTION TO EXTEND DISCOVERY CUT-OFF DATE
The Court set May 4, 2015 as the discovery deadline in this case. (ECF No. 54.)

Plaintiff seeks an extension of 150 days to conduct discovery.
Federal Rule of Civil Procedure 16(b)(4) allows the Court to modify its scheduling
order for good cause. The “good cause” standard focuses primarily on the diligence of
the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir.1992). “[C]arelessness is not compatible with a finding of diligence and
offers no reason for a grant of relief.” Id. “Although the existence or degree of prejudice
to the party opposing the modification might supply additional reasons to deny a motion,
the focus of the inquiry is upon the moving party's reasons for seeking modification.” Id.
The Court has wide discretion to extend time, Jenkins v. Commonwealth Land Title Ins.
Co., 95 F.3d 791, 795 (9th Cir. 1996), provided a party demonstrates some justification
for the issuance of the enlargement order.

Fed. R. Civ. P. 6(b)(1); Ginett v. Fed.

Express Corp., 166 F.3d 1213 at 5* (6th Cir. 1998).
Plaintiff argues that he needs the additional time because he is a lay person, has
a low educational level, and despite seeking assistance of jailhouse lawyers, he was not
able to gain assistance until April 2015. Defendants argue that Plaintiff has not served
any discovery in the approximately eight months discovery has been open, and it
appears that Plaintiff failed to seek assistance from the law clerk inmate for over five of
those months. Plaintiff replies that he began seeking assistance after the Court entered
its discovery and scheduling order in September 2014, that from November 2014 to
January 2015 he was in administrative segregation and unable to seek assistance, and
that he renewed his efforts once released from segregation.

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Parties representing themselves “must appear personally or by courtesy
appearance by an attorney admitted to the Bar of this Court and may not delegate that
duty to any other individual, including husband or wife, or any other party on the same
side appearing without an attorney.” Local Rule 183(a). Mr. Stone, Plaintiff’s “jailhouse
lawyer” or “prison paralegal,” is not an attorney and he is precluded from filing or
litigating cases on the behalf of anyone but himself. Johns v. Cnty. of San Diego, 114
F.3d 874, 877 (9th Cir. 1997); C. E. Pope Equity Trust v. United States, 818 F.2d 696,
697 (9th Cir. 1987). Put simply, although he may be assisting Plaintiff in this case, Mr.
Stone’s unavailability or the general unavailability of other jailhouse lawyers does not
provide good cause for extending the time for Plaintiff to conduct discovery.

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However, since the discovery deadline has now passed and the Court has given
Plaintiff an extension until May 16, 2015 to amend his pleadings and there is still one
Defendant in this case who has yet to be served, Plaintiff will be granted a final and
limited extension of time of sixty (60) days from the date of service of this order to
conduct discovery on his own behalf.
III.

ORDER
Accordingly, it is HEREBY ORDERED that:

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Plaintiff’s motion to extend the discovery cut-off date for 150 days (ECF

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No. 73.) and motion clarifying due diligence (ECF No. 75.) is GRANTED, in

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part, and DENIED, in part. Plaintiff’s motion clarifying due diligence is

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construed as a reply to his motion to extend the discovery cut-off date.

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Plaintiff is GRANTED a final imited extension of time of sixty (60) days

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from the date of service of this order to conduct discovery.

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IT IS SO ORDERED.

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Dated:

May 15, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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