Blair v. CDCR et al

Filing 129

ORDER GRANTING Defendants' 127 Motion to Modify Scheduling Order as to Dispositive Motion Deadline, signed by Magistrate Judge Stanley A. Boone on 7/30/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY C. BLAIR,

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Plaintiff,
v.

Case No. 1:14-cv-01156-LJO-SAB (PC)
ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY SCHEDULING
ORDER AS TO DISPOSITIVE MOTION
DEADLINE

CDCR, et al.,
(ECF No. 127)

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Defendants.

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Plaintiff Perry C. Blair is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Alva,

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Franco and O’Daniels for deliberate indifference, against Defendants Santos, Esqueda, and Ybarra

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for a due process violation, and against Defendant Johnson for retaliation.

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On February 22, 2018, Defendants filed an exhaustion-related motion for summary

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judgment.

(ECF No. 84.)

On May 25, 2018, the undersigned issued Findings and

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Recommendations recommending that Defendants’ motion for summary judgment by granted in

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part and denied in part, subject to an evidentiary hearing. (ECF No. 99.) On July 30, 2018, the

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Findings and Recommendations were adopted in full. (ECF No. 103.)

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On October 9, 2018, the undersigned issued an order granting Defendants’ motion for

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modification of the scheduling order and extending the dispositive motion deadline to ninety days

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after the final ruling on the pending Albino evidentiary hearing. (ECF No. 118.)
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On October 24, 2018, the undersigned conducted an Albino evidentiary hearing in order to

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determine the disputed issues of fact regarding exhaustion of administrative remedies. (ECF No.

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121.) On May 17, 2019, the undersigned issued Findings and Recommendations following the

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Albino evidentiary hearing recommending that two of Plaintiff’s claims be dismissed for failure to

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exhaust administrative remedies. (ECF No. 123.) On July 15, 2019, the District Judge issued an

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order adopting the May 17, 2019 Findings and Recommendations in full, dismissing two of

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Plaintiff’s claims for failure to exhaust administrative remedies, and granting Defendants leave to

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file a dispositive motion within thirty days from the date of service of this order. (ECF No. 126.)

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Currently before the Court is Defendants’ motion to modify scheduling order as to

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dispositive motion deadline, filed on July 29, 2019. (ECF No. 127.) The Court finds a response

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from Plaintiff is unnecessary and the motion is deemed submitted. Local Rule 230(l).

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with

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the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers

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the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably

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be met despite the diligence of the party seeking the extension.” Id. If the party was not diligent,

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the inquiry should end. Id.

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Defendants argue that good cause exists to modify the discovery and dispositive motion

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deadlines because, since Defendants were relying on the Magistrate Judge’s October 9, 2018 order

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extending the dispositive motion deadline to ninety days after the final ruling on the pending Albino

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evidentiary hearing, Defendants did not commence preparing their merits-based summary

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judgment motion prior to the final ruling on the administrative exhaustion issues, as that ruling

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would set the scope of claims left for adjudication in the merits-based summary judgment motion.

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Additionally, Defendants argue that, as there are a large number of Defendants and claims, they

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will need ninety days in order to complete and file their factually and legally complex merits-based

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summary judgment motion. Finally, Defendants assert that they have been diligent in preparing

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and filing the instant motion soon after the final decision on the administrative exhaustion matters

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issued.
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Having considered Defendants’ request, the Court finds good cause to modify the

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dispositive motion deadline. Therefore, Defendants’ motion to modify scheduling order as to the

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dispositive motion deadline, (ECF No. 127), is HEREBY GRANTED. The dispositive motion

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deadline is extended to October 14, 2019. All other provisions set forth in the September 1, 2017

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discovery and scheduling order, (ECF No. 74), remain in full force and effect.

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IT IS SO ORDERED.
Dated:

July 30, 2019
UNITED STATES MAGISTRATE JUDGE

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