Harris v. German et al

Filing 54

ORDER Granting Plaintiff's 32 Motion to Modify Scheduling Order and Motion for Extension of Time to File Responses to Defendants' Motion to Compel and Motion for Summary Judgment; Sixty-Day Deadline For Plaintiff to File Response to Defen dants' Motion to Compel 38 ; Sixty-Day Deadline for Plaintiff to File Opposition or Notice of Non-Opposition to Defendants' Motion for Summary Judgment 44 , signed by Magistrate Judge Gary S. Austin on 12/21/18. New Discovery Deadline: 1/29/2019. New Dispositive Motions Deadline: 3/30/2019. (Gonzalez, R)

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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 AND MOTION FOR EXTENSION
OF TIME TO FILE RESPONSES TO
DEFENDANTS’ MOTION TO COMPEL
AND MOTION FOR SUMMARY
JUDGMENT
(ECF No. 32.)
SIXTY-DAY DEADLINE FOR PLAINTIFF
TO FILE RESPONSE TO DEFENDANTS’
MOTION TO COMPEL
(ECF No. 38.)

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SIXTY-DAY DEADLINE FOR PLAINTIFF
TO FILE OPPOSITION OR NOTICE OF
NON-OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
(ECF No. 44.)

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New discovery deadline: 01/29/2019

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New dispositive motions deadline: 03/30/2019

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I.

BACKGROUND

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Devonte Harris (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis with

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

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Amended Complaint filed by Plaintiff on March 14, 2016, against defendants Correctional

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Officer (C/O) Humberto German, C/O Philip Holguin, and C/O R. Bunitzki (collectively,

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“Defendants”), for use of excessive force in violation of the Eighth Amendment; and, against

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defendant C/O Philip Holguin for retaliation in violation of the First Amendment. (ECF No.

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8.)

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On September 13, 2018, the court issued an order requiring Plaintiff to respond to

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Defendants’ motion to compel of August 16, 2018, within sixty days. (ECF No. 42.) To date,

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Plaintiff has not filed a response to the motion to compel, and the sixty-day deadline has

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expired.

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On September 21, 2018, the court issued a modified Scheduling Order setting out

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deadlines for the parties, including a discovery deadline of November 30, 2018, and a

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dispositive motions deadline of January 30, 2019. (ECF No. 43.)

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On November 16, 2018, the court issued an order requiring Plaintiff to file an

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opposition or notice of non-opposition to Defendants’ motion for summary judgment of

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October 15, 2018, within sixty days. (ECF No. 47.) The sixty-day deadline is pending.

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On November 19, 2018, Plaintiff filed a motion to modify the scheduling order and for

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an extension of time to file responses to Defendants’ motion to compel and motion for

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summary judgment. (ECF No. 48.) Defendants have not filed an opposition to Plaintiff’s

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motion.

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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

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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 requests an extension of the discovery deadline from November 30, 2018, to

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January 29, 2019, and an extension of the dispositive motions deadline from January 30, 2019,

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to March 30, 2019. Plaintiff declares that he is unable to meet these two deadlines because on

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October 9, 2018, he was transferred from Corcoran State Prison (CSP-Cor) to California State

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Prison-Sacramento (CSP-Sac) for an upcoming court date of October 12, 2018, and he was not

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allowed to bring his property with him. (Plaintiff’s Declaration, ECF No. 48 at 2 ¶¶ 4, 5.) The

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court date was postponed and finally took place on October 31, 2018, but Plaintiff has not been

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transferred back to CSP-Cor, or received his property. (Id. ¶¶ 6, 7.) Plaintiff contacted his

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prison correctional counselor and the property officer at CSP-Sac with a request to either

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expedite his transfer back to CSP-Cor, or obtain his property from CSP-Cor. This request was

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without success. (Id. ¶ 9.) Therefore, Plaintiff does not have his legal materials and has been

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unable to pursue discovery. (Id. ¶ 8.) These matters are out of Plaintiff’s control. (Id. ¶ 11.)

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The court finds good cause to modify the court’s Scheduling Order to extend the

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discovery and dispositive motions deadlines as requested by Plaintiff. Plaintiff has submitted

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evidence showing that he was diligent in attempting to gain access to his legal property in time

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to meet the court’s deadlines but was unable to do so. Defendants have not opposed Plaintiff’s

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motion. Therefore, Plaintiff’s motion to modify the Scheduling Order shall be granted.

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III.

“When an act may or must be done within a specified time, the court may, for good

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MOTION FOR EXTENSION OF TIME

cause, extend the time.” Fed. R. Civ. P. 6(b)(1).

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Plaintiff requests a sixty-day extension of time to file responses to Defendants’ motion

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to compel (ECF No. 38) and motion for summary judgment (ECF No. 44). Defendants have

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not opposed Plaintiff’s motion for extension of time. Good cause having been presented to the

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court and good cause appearing therefor, Plaintiff’s motion for extension of time shall be

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granted.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to modify the court’s September 21, 2018, Scheduling Order,

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and to extend time to file responses to Defendants’ motion to compel and

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motion for summary judgment, filed on November 29, 2018, is GRANTED;

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2.

Plaintiff is GRANTED an extension of time until sixty days from the date of

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service of this order, in which to file a response to Defendants’ motion to

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compel of August 16, 2018;

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3.

Plaintiff is GRANTED an extension of time until sixty days from the date of

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service of this order, in which to file an opposition or notice of non-opposition

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to Defendants’ motion for summary judgment of October 15, 2018;

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4.

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to January 29, 2019, for all parties to this action;
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The deadline for completion of discovery is extended from November 30, 2018,

The deadline for filing dispositive motions is extended from January 30, 2019,
to March 30, 2019, for all parties to this action; and

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All other provisions of the court's September 21, 2018 Scheduling Order remain
the same.

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IT IS SO ORDERED.
Dated:

December 21, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE