Darden v. Spencer et al

Filing 46

ORDER GRANTING MOTION TO MODIFY SCHEDULING ORDER 40 AND EXTENDING DEADLINE TO FILE EXHAUSTION MOTIONS signed by Magistrate Judge Erica P. Grosjean on 2/24/2016. (Motion filing deadline 3/24/2016).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:12-cv-01001-LJO-EPG-PC

GERALDINE DARDEN,

ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(ECF No. 40.)

vs.
S. DRISCOLL, M.D., et al.,

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ORDER EXTENDING DEADLINE TO FILE
EXHAUSTION MOTIONS

Defendants.

New Exhaustion Motion Filing Deadline:

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March 24, 2016

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I.

BACKGROUND

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Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

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U.S.C. ' 1983. This case now proceeds on Plaintiff’s First Amended Complaint filed on

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February 11, 2013, against defendant Scott Driscoll, M.D. (“Defendant”) for inadequate

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medical care in violation of the Eighth Amendment. (ECF No. 19.)

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On September 24, 2015, the Court issued a Scheduling Order establishing pretrial

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deadlines for the parties, including a deadline of December 24, 2015 for filing exhaustion

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motions. (ECF No. 33.) On December 21, 2015, Defendant filed a motion to modify the

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Scheduling Order. (ECF No. 40.) On December 31, 2015, Plaintiff filed an opposition to the

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motion. (ECF No. 43.) On January 7, 2016, Defendant filed a reply. (ECF No. 44.)
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II.

MOTION TO MODIFY SCHEDULING ORDER

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

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16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

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modification of a scheduling order must generally show that even with the exercise of due

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diligence, they cannot meet the requirement of the order. Id. The Court may also consider the

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prejudice to the party opposing the modification. Id. If the party seeking to amend the

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scheduling order fails to show due diligence the inquiry should end and the Court should not

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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

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(9th Cir. 2002).

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Defendant requests a sixty-day extension of the deadline for filing exhaustion motions.

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Defense counsel (“Counsel”) asserts that promptly after filing Defendant’s Answer on

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September 18, 2015, she requested a subpoena service to subpoena all of Plaintiff’s prison

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records from the Central California Women’s Facility (CCWF) where Plaintiff has been

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incarcerated since 1999. (Jaffee Decl., ECF No. 40 at 7 ¶3.) Counsel received 2152 pages of

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records on October 26, 2015, which included only medical records. (Id. ¶ at 8 ¶4.) Counsel

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asked the subpoena service to contact CCWF and make another request.

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November 17, 2015, Counsel received an additional 3028 pages of records from CCWF,

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including appeals submitted by Plaintiff within the prison. (Id. ¶6.) After reviewing the

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documents, Counsel made a request for further information and discovered from a conversation

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with the Litigation Coordinator that more records of Plaintiff’s appeals existed, some of the

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records were incomplete, and Counsel would need to make another request. (Id. ¶¶7-9.)

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Counsel has requested that the subpoena service follow up again with CCWF so that Counsel

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can obtain the complete health care appeals file. (Id. ¶10.) Counsel has also made a discovery

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request to Plaintiff for records of her health care appeals, but as of December 21, 2015, had not

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received a response. (Id. ¶11.)

(Id. ¶5.)

On

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In opposition, Plaintiff argues that it “would be a hardship [for her] to be subjected to

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file a reply that has previously be [sic] ruled with this same court three times prior to this
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action, [and it] will be a waste of time for all parties involved to dispute an issue that has

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already been decided.” (ECF No. 43.) Plaintiff asserts that CCWF improperly screened her

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appeals and made it clear that she could not use their appeal process to complain about an

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outside doctor.

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The Court finds good cause to extend the deadline to file exhaustion motions.

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Defendant has provided evidence that defense counsel was diligent in attempting to obtain

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information needed to meet the Court’s December 24, 2015 deadline but was unable to file an

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exhaustion motion before the deadline expired.

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Therefore, Defendant’s motion to modify the Scheduling Order shall be granted.

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III.

Plaintiff’s arguments are unpersuasive.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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21, 2015, is GRANTED;
2.

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Defendant’s motion to modify the Court’s Scheduling Order, filed on December

The deadline for filing exhaustion motions is extended from December 24, 2015
to March 24, 2016; and

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All other provisions of the Court’s September 24, 2015 Scheduling Order
remain the same.

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IT IS SO ORDERED.
Dated:

February 24, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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