Harris v. German et al
Filing
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ORDER GRANTING Plaintiff's 40 Motion to Modify Scheduling Order; ORDER RE-OPENING Discovery and Setting New Deadlines to Complete Discovery and File Dispositive Motions, for all Parties signed by Magistrate Judge Gary S. Austin on 9/21/2018. New Discovery Deadline: 11/30/2018; New Dispositive Motions Deadline: 1/30/2019. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVONTE HARRIS,
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Plaintiff,
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vs.
HUMBERTO GERMAN, et al.,
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Defendants.
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1:15-cv-01462-DAD-GSA-PC
ORDER GRANTING PLAINTIFF’S
MOTION TO MODIFY SCHEDULING
ORDER
(ECF No. 40.)
ORDER RE-OPENING DISCOVERY AND
SETTING NEW DEADLINES TO
COMPLETE DISCOVERY AND FILE
DISPOSITIVE MOTIONS, FOR ALL
PARTIES
New Discovery Deadline:
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November 30, 2018
New Dispositive Motions Deadline: January 30, 2019
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I.
BACKGROUND
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Plaintiff Devonte Harris is a prisoner proceeding pro se and in forma pauperis with this
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civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with the First Amended
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Complaint filed by Plaintiff on March 14, 2016, against defendants Correctional Officer (C/O)
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Humberto German, C/O Philip Holguin, and C/O R. Bunitzki (collectively, “Defendants”), for use
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of excessive force in violation of the Eighth Amendment; and against defendant C/O Philip
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Holguin for retaliation in violation of the First Amendment. (ECF No. 8.)
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On March 19, 2018, the court issued a Discovery and Scheduling Order establishing
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pretrial deadlines for the parties, including a discovery deadline of August 18, 2018, and a
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deadline of October 18, 2018 for filing dispositive motions. (ECF No. 37.) On August 23, 2018,
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Plaintiff filed a motion to modify the Scheduling Order. (ECF No. 40.) Defendants have not
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filed an opposition, and the time to do so has expired.
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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 scheduling
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order fails to show due diligence the inquiry should end and the Court should not grant the motion
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to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
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Plaintiff requests a sixty-day extension of the discovery deadline asserting that he has not
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had access to the law library, his personal legal books, or the documents related to his case for
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the majority of the time since issuance of the scheduling order, due to events at the prison out of
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his control. Defendants have not opposed an extension of the discovery deadline.
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The court finds good cause to extend the discovery deadline and the deadline to file
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dispositive motions, for all parties to this case. Plaintiff has shown that he was diligent in
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attempting to conduct discovery but was unable to meet the court’s deadline. Therefore,
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Plaintiff’s motion to modify the Discovery and Scheduling Order shall be 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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Plaintiff’s motion to modify the court's March 19, 2018 Discovery and Scheduling
Order, is GRANTED;
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///
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2.
Discovery is re-opened, and the deadline for the completion of discovery,
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including the filing of motions to compel, is extended from August 18, 2018 to
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November 30, 2018; for all parties to this action;
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3.
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The deadline for filing and serving pretrial dispositive motions is extended from
October 18, 2018 to January 30, 2019 for all parties to this action; and
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All other provisions of the court's March 19, 2018 Discovery and Scheduling
Order remain the same.
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IT IS SO ORDERED.
Dated:
September 21, 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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