White v. Zuniga et al

Filing 36

ORDER Granting Defendants' Motion To Modify Discovery And Scheduling Order (Document 34 ), signed by Magistrate Judge Dennis L. Beck on 1/13/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDRE WHITE, JR.,

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Plaintiff,

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v.
ZUNIGA, et al.,

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Case No. 1:13-cv-00203 DAD DLB PC
ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY DISCOVERY AND
SCHEDULING ORDER
(Document 34)

Defendants.

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Plaintiff Andre White Jr. (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983.
Pursuant to the March 10, 2015, Discovery and Scheduling Order, the deadline to file a

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motion for summary judgment based on exhaustion was June 10, 2015. The dispositive motion

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deadline is currently January 19, 2016.
On December 30, 2015, Defendants filed a motion to modify the Discovery and Scheduling

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Order. Defendants seek to modify the June 10, 2015, deadline to permit the filing of a motion based

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on exhaustion by January 19, 2016. The Court deems the matter suitable without an opposition

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pursuant to Local Rule 230(l).

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DISCUSSION

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Modification of the pretrial scheduling order requires a showing of good cause. Fed. R. Civ.

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P. 16(b)(4). “The schedule may be modified ‘if it cannot reasonably be met despite the diligence of

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the party seeking the extension.’” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087

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(9th Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

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“Although the existence or degree of prejudice to the party opposing the modification might supply

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additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for

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seeking the modification.” Johnson, 975 F.2d at 609. “If the party seeking the modification ‘was

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not diligent, the inquiry should end’ and the motion to modify should not be granted.” Zivkovic, 302

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F.3d at 1087 (quoting Johnson, 975 F.2d at 609).
Here, Defendants request that the June 10, 2015, deadline for filings motions based on

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exhausted be extended to coincide with the dispositive motion deadline of January 19, 2016.

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Defendants’ counsel explains that he was recently added to this action and was asked to evaluate the

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case for a possible exhaustion challenge. Counsel found grounds for such a motion and states that

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the motion would be dispositive of the entire case.

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Given the Ninth Circuit’s instruction to decide exhaustion issues as soon as possible and

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newly-added counsel’s recent discovery, good cause exists to extend the deadline. Albino v. Baca,

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747 F.3d 1162 (9th Cir. 2014). Any prejudice to Plaintiff is unlikely because Plaintiff was afforded

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eight months to conduct discovery, including discovery related to exhaustion. Accordingly,

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Defendants’ motion is GRANTED and the Discovery and Scheduling Order is MODIFIED to permit

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motions based on exhaustion to be filed no later than January 19, 2016.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

January 13, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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