King v. Martinez, et al.

Filing 73

ORDER Denying Plaintiff's 63 Motion to Re-Open Discovery signed by Magistrate Judge Stanley A. Boone on 08/31/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO KING,

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Plaintiff,

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v.

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W.S. WADKINS,

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Defendant.

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Case No.: 1:16-cv-00433-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
RE-OPEN DISCOVERY
[ECF No. 65]

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Plaintiff Mario King is a state prisoner and appearing pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s motion to re-open discovery, filed August 3, 2017.

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Defendant filed an opposition on August 9, 2017, and Plaintiff did not file a reply. Therefore, the

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motion is deemed submitted for review without oral argument. Local Rule 230(l).

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I.

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DISCUSSION

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Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order

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controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P.

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16(d). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),

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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling

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order must generally show that even with the exercise of due diligence, they cannot meet the

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requirement of that order. Id. The court may also consider the prejudice to the party opposing the

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modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the
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inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern

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California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the

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court’s deadline date for discovery by demonstrating good cause for allowing further discovery. Fed.

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R. Civ. P. 16(b)(4).

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“Good cause may be found to exist where the moving party shows that it diligently assisted

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the court with creating a workable scheduling order, that it is unable to comply with the scheduling

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order’s deadlines due to matters that could not have reasonably bee foreseen at the time of the issuance

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of the scheduling order, and that it was diligent in seeking an amendment once it became apparent that

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the party could not comply with the scheduling order.” Kuschner Nationwide Credit, Inc., 256 F.R.D.

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684, 687 (E.D. Cal. 2009).
In this instance, the Court issued the discovery and scheduling order on August 23, 2016,

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setting the deadline for completion of all written discovery as April 23, 2017. (ECF No. 18.) The

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discovery and scheduling order provides “discovery requests shall be served by the parties pursuant to

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Federal Rule of Civil Procedure 5 and Local Rule 135[,]” and “[r]esponses to written discovery

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requests shall be due forty-five (45) days after the request is first served.” (ECF No. 18 at ¶¶ 1-2.)

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Prior to the expiration of the discovery deadlines, Defendants filed a motion to extend the

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discovery deadline on April 13, 2017. (ECF No. 40.) On April 17, 2017, the Court granted

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Defendant’s motion and extended the discovery deadline to May 8, 2017. (ECF No. 41.) Plaintiff

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thereafter sought an additional extension of time to provide responses to Defendant’s discovery

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requests on April 17, 2017. (ECF No. 42.) The Court granted Plaintiff’s requests and extended the

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discovery deadline to June 14, 2017. (ECF No. 43.) The dispositive motion deadline is currently set

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for September 3, 2017. (ECF Nos. 47.)

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Plaintiff’s motion to re-open discovery must be denied because he has failed to show good

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cause. In his motion, Plaintiff seeks to re-open discovery to “elude exculpatory evidence that will

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provide beyond a doubt Plaintiff’s case.” (ECF No. 63 at 1:25-26.) Plaintiff references interrogatories

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and requests for productions of documents as discovery he seeks to request. However, Defendant

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submits that no discovery requests were ever served on them. (Declaration of A. De La Torre-Fennell

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(De La Torre-Fennell Decl.) at ¶ 5.)
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Plaintiff had eight months from August 26, 2016-the date of issuance of the discovery and

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scheduling was issued to propound discovery requests. Yet, Plaintiff failed to propound any

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discovery, notwithstanding the fact that during the eighth month time frame Defendant propounded

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discovery and sought a motion to compel discovery, which was granted. (ECF Nos. 31, 34, 40, 41, 42,

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43, 44, 57.) Plaintiff’s general allegations that he is not trained in the law and is not familiar with the

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tools of discovery do not show good cause for an extension of the discovery deadline. There is simply

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no indication that Plaintiff is subjected to burdens beyond those ordinarily imposed on incarcerated

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pro se litigants. Furthermore, Plaintiff has not indicated what, if any, actions he has undertaken to

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demonstrate that he was working diligently to meet the August 23, 2016, discovery deadline, and

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evidence demonstrates to the contrary. If Plaintiff was in need of discovery to prosecute his case, or

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required additional time to propound it, the record in this case supports the finding that he was capable

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of filing a motion to modify the discovery and scheduling order to extend the discovery deadline. Yet,

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Plaintiff failed to do so until almost two months after the discovery deadline expired, and after

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Defendant conducted his deposition and just before the dispositive motion deadline is set to expire.

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Moreover, Plaintiff has failed to identify any documentation or category of documentation of which

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Defendant in his possession that would assist in litigating Plaintiff’s claims. Indeed, Plaintiff contends

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that he “can almost ensure” his line of questioning will “expose or elude to exculpatory evidence” in

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his case and “rebuttal of his other filed lawsuit against correctional sergeant J. Barrios for retaliation.”

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(ECF No. 63 at 3:24-27.) However, Plaintiff’s request to rebut evidence in a different action is

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irrelevant as to discovery in this action and has no bearing on the claims against Defendant Watkins.

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Accordingly, Plaintiff has failed to show good cause to re-open discovery in this case, and Plaintiff’s

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motion must be denied.

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IT IS SO ORDERED.

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Dated:

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August 31, 2017
UNITED STATES MAGISTRATE JUDGE

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