Pappas v. North Kern State Prison et al

Filing 54

ORDER granting 45 Motion to modify Scheduling Order signed by Magistrate Judge Erica P. Grosjean on 5/4/2016. (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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1:14-cv-00109-DAD-EPG-PC

NICHOLAS CHRISTOPHER PAPPAS,

ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(ECF No. 45.)

vs.
NORTH KERN STATE PRISON, et al.,

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New Deadline To File Dispositive Motions:
Sixty Days After Court’s Ruling
On Defendant’s Exhaustion Motion
of May 1, 2015

Defendants.

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I.

BACKGROUND

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Nicholas Christopher Pappas (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the

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Complaint commencing this action on January 27, 2014. (ECF No. 1.) This case now proceeds

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against defendant Correctional Officer J. Lopez (“Defendant”), for use of excessive force in

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violation of the Eighth Amendment.

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On February 4, 2015, the Court issued a Discovery/Scheduling Order setting out

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deadlines in this action, including a May 4, 2015 deadline to file exhaustion motions, October

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4, 2015 deadline to complete discovery, and December 14, 2015 deadline to file dispositive

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motions. (ECF No. 26.)
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On December 11, 2015, Defendant filed a motion to modify the Discovery/Scheduling

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Order to extend the deadline for filing dispositive motions. (ECF No. 45.) Plaintiff has not

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opposed the motion.

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II.

MOTION TO MODIFY SCHEDULING ORDER

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A.

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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).

Legal Standard

Defendant’s Motion

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B.

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Defendant requests an extension of the December 14, 2015 deadline to file dispositive

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motions. Defendant argues that the parties have been diligent about meeting the Court’s

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deadlines, but the deadline to file dispositive motions is fast approaching and the Court has not

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yet ruled on Defendant’s exhaustion motion (motion for summary judgment for failure to

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exhaust remedies), which will resolve the case if granted. In the event the Court denies the

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exhaustion motion and the case is not resolved, Defendant seeks time to file another dispositive

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motion after the Court’s ruling. Defendant requests an extension of time until sixty days after

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the date the Court rules on the exhaustion motion.

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C.

Discussion

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The Court finds that Defendant has been diligent about meeting the Court’s deadlines.

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The Court issued the Discovery/Scheduling Order on February 4, 2015. (ECF No. 26.) The

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deadline to file exhaustion motions was May 4, 2015. (Id.) Defendant filed an exhaustion

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motion on May 1, 2015; Plaintiff filed an opposition to the motion on June 4, 2015; and
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Defendant filed a reply to the opposition on June 11, 2015. (Declaration of Monica N.

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Anderson at ¶2-3.) The Court issued findings and recommendations to grant the exhaustion

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motion on December 30, 2015. (ECF No. 46.) Meanwhile, the deadline for the parties to file

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dispositive motions expired. To date, the Court has not issued a final ruling on Defendant’s

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exhaustion motion.

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Defendant has shown good cause for the Court to extend the deadline to file dispositive

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motions. Therefore, Defendant’s motion to modify the Discovery/Scheduling Order shall be

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granted.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendant’s motion to modify the Court’s Discovery/Scheduling Order, filed on
December 11, 2015, is GRANTED;

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The deadline for the parties to file dispositive motions is extended from

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December 14, 2015 until sixty days after the date the Court rules on Defendant’s

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exhaustion motion filed on May 1, 2015; and

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3.

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All other provisions of the Discovery/Scheduling order of February 4, 2015,
remain the same.

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IT IS SO ORDERED.
Dated:

May 4, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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