Hazeltine v. Hicks et al

Filing 70

ORDER Re-Opening Discovery, for Limited Purpose of Allowing Plaintiff to File Motion to Compel, as Instructed by this Order; ORDER Extending Discovery and Dispositive Motions Deadline for all Parties signed by Magistrate Judge Gary S. Austin on 06/08/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICK HAZELTINE,

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Plaintiff,

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vs.

1:14-cv-00056-DAD-GSA-PC
ORDER RE-OPENING DISCOVERY FOR
LIMITED PURPOSE OF ALLOWING
PLAINTIFF TO FILE MOTION TO COMPEL,
AS INSTRUCTED BY THIS ORDER

FRANCES HICKS, et al.,

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Defendants.

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ORDER EXTENDING DISCOVERY AND
DISPOSITIVE MOTIONS DEADLINES FOR
ALL PARTIES
New Discovery Deadline:

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July 14, 2017

New Dispositive Motions Deadline: September 31, 2017

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I.

RELEVANT PROCEDURAL HISTORY

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Rick Hazeltine (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds with

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Plaintiff’s First Amended Complaint filed on July 6, 2015, on the following claim: Excessive

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force in violation of the Fourteenth Amendment against Defendants Ian Young, Benjamin

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Gamez, Rashaun Casper, Julius Oldan, Porfirio Sanchez Negrete, David Avilia, Rickey Smith,

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and Charles Ho (collectively “Defendants”). (ECF No. 27.)

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On September 23, 2016, Defendants filed a motion for summary judgment based solely

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upon requests for admission deemed admitted by Plaintiff’s failure to respond. (ECF No. 53.)
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On November 21, 2016, the Magistrate Judge entered findings and recommendations,

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recommending that the motion be granted. (ECF No. 60.) On December 19, 2016, Plaintiff

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filed objections to the findings and recommendations. (ECF No. 61.) On May 18, 2017, the

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District Court declined to adopt the findings and recommendations, denied the motion for

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summary judgment, and referred the case back to the Magistrate Judge for further proceedings.

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(ECF No. 69.) The District Court instructed the Magistrate Judge that he may, but is not

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required to, reopen discovery and dispositive law and motion if it is concluded that resolution

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of plaintiff’s claim on the merits will be promoted by doing so [or] may elect to simply set the

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case for Final Pretrial Conference and Trial if that is deemed appropriate. (Id., note ECF No.

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69.)

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The court finds good cause to reopen discovery and extend the dispositive motions

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deadline.

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II.

REQUEST FOR FURTHER DISCOVERY

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In his objections to the findings and recommendations, Plaintiff requested further

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discovery to pursue his request for a video recording of the alleged assault by Defendants, and

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to obtain further responses to previously submitted requests for discovery. (ECF No. 61 at 3-

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5.) Plaintiff stated that “once plaintiff had a chance to view said video, he would be better

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equipped to answer [Defendants’ request for admissions], without the fear of the possibility of

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committing perjury and risking his entire case.” (Id. at 3.) Plaintiff also stated that with respect

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to the incident in question he had “eight people on me,” but “he couldn’t honestly identify who

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did exactly what but that there was a video of the entire assault and it would show everything.”

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(Id. at 2–3.) Plaintiff argues that he has “been prejudiced by defendant’s broken promises to

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obtain the video and other discovery.” (Id. at 4.)

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On August 25, 2015, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties. (ECF No. 30.) On May 25, 2016, the court extended the

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deadline for conducting discovery, including the filing of motions to compel, until July 25,

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2016, and the deadline for filing dispositive motions until September 23, 2016. (ECF Nos. 30,

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46.) All of the deadlines have now expired.
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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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Plaintiff has indicated that he previously served a request for production of documents

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upon Defendants on March 6, 2016, (ECF No. 43), and made multiple requests to Defendants

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for the video taken of the assault at issue in this case, (ECF No. 61 at 4:21-28). However,

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Plaintiff has not filed a motion to compel. (Court record.) The court finds that at this juncture

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it would promote the resolution of Plaintiff’s claim on the merits to reopen discovery for the

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limited purpose of allowing Plaintiff to file a motion to compel, and to extend the deadline for

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filing dispositive motions for all parties.

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Plaintiff shall be granted until July 14, 2017, in which to file a motion to compel.

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Defendants shall file their opposition or notice of non-opposition within twenty-one days of the

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date of filing of Plaintiff’s motion to compel. Plaintiff shall file a reply, if any, within ten days

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of the date of filing of Defendants’ opposition. No other discovery is to be conducted during

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this time period. The dispositive motions deadline shall be extended until September 31,

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2017.

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Plaintiff is advised that as the movant in a motion to compel, he bears the burden of

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demonstrating why Defendants’ responses to his discovery requests were insufficient or why

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Defendants’ objections were not justified. E.g., Grabek v. Dickinson, No. CIV S–10–2892

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GGH P, 2012 WL 113799, at * 1 (E.D.Cal. 2012); Womack v. Virga, 2011 WL 6703958, at *3;

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Mitchell v. Felker, No. CV 08–119RAJ, 2010 WL 3835765, at *2 (E.D.Cal. 2010); Ellis v.

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Cambra, No. 1:02–cv–05646–AWI–SMS PC, 2008 WL 860523, at *4 (E.D.Cal. 2008). This
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requires Plaintiff to inform the court which discovery requests are the subject of the motion to

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compel, and, for each disputed response, why the information sought is relevant,1 and why the

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responding party’s objections are not meritorious. Id.

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broad discretion to manage discovery and notwithstanding these procedures, Plaintiff is entitled

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to leniency as a pro se litigant; therefore, to the extent possible, the court shall endeavor to

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resolve his motion to compel on its merits. Hunt v. County of Orange, 672 F.3d 606, 616 (9th

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Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005);

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Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

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III.

However, the Court is vested with

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Good cause appearing, discovery shall be reopened in this action;

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2.

Discovery is reopened until July 14, 2017, for the limited purpose of allowing

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Plaintiff to file a motion to compel;

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3.

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Defendants shall file their opposition or notice of non-opposition to the motion
to compel within twenty-one days of the date of filing of the motion to compel;

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4.

Plaintiff shall file a reply to Defendants’ opposition, if any, within ten days of
the date of filing of Defendants’ opposition;

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5.

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No other discovery shall be conducted during this reopened discovery phase;
and

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6.

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The dispositive motions deadline is extended until September 31, 2017, for all
parties to this action.

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IT IS SO ORDERED.
Dated:

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June 8, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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“Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401.
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