Brown v. Harris et al

Filing 71

ORDER GRANTING 70 Motion to Modify Scheduling Order signed by Magistrate Judge Gary S. Austin on 4/8/2015. New Discovery Cut-Off Date: 8/31/2015. New Dispositive Motions Deadline: 10/30/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CORNELL BROWN,

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Plaintiff,

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ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(Doc. 70.)

vs.

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1:12-cv-01472-LJO-GSA-PC

HARRIS, et al.,

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ORDER EXTENDING DISCOVERY AND
DISPOSITIVE MOTIONS DEADLINES
FOR ALL PARTIES TO THIS ACTION

Defendants.

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New Discovery Cut-Off Date:

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New Dispositive Motions Deadline: 10/30/2015

08/31/2015

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I.

BACKGROUND
Cornell Brown (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff’s initial Complaint filed on September 10, 2012, against defendant Harris for

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excessive force in violation of the Eighth Amendment, and against defendant Nelson for failure

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to protect Plaintiff in violation of the Eighth Amendment. (Doc. 1.) On August 19, 2014, the

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court issued a Scheduling Order establishing deadlines of April 19, 2015 for the completion of

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discovery, and June 29, 2015 for the parties to file pretrial dispositive motions. (Doc. 58.) On

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April 7, 2015, Defendants filed a motion to modify the Scheduling Order. (Doc. 70.)
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This case now proceeds on

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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). A party may obtain relief from the court=s deadline date for discovery by

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demonstrating good cause for allowing further discovery. Fed. R. Civ. P. 16(b)(4).

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Defendants request the court to vacate the current discovery and dispositive motions

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deadlines, pending Plaintiff return to the custody of the California Department of Corrections

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and Rehabilitation (CDCR). Defendants argue that because Plaintiff is presently housed at the

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Kern County Jail until at least May 19, 2015, it is difficult for Defendants to conduct a

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meaningful deposition, because Plaintiff does not have access to his legal paperwork or a law

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library and will be unable to adequately prepare for his deposition. Defendants also argue that

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a ruling on their pending motion for summary judgment may significantly narrow the scope of

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this case, leaving Plaintiff’s excessive force claim against defendant Harris as Plaintiff’s sole

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remaining claim.

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The Court finds good cause to extend the discovery and dispositive motions deadlines

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in this action, to allow for meaningful discovery.

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extension of the deadlines, they should file a motion before the current deadlines expire.

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Accordingly, Defendants’ motion to modify the Scheduling Order shall be granted.

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III.

Should Defendants require a further

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendants’ motion to modify the court's Scheduling Order, filed on April 7,
2015, is GRANTED;
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August 31, 2015 for all parties to this action;
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The deadline for the completion of discovery is extended from April 19, 2015 to

The deadline for filing and serving pretrial dispositive motions is extended from
June 29, 2015 to October 30, 2015 for all parties to this action; and

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All other provisions of the court's August 19, 2014 Scheduling Order remain the
same.

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IT IS SO ORDERED.
Dated:

April 8, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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