Singleton v. Fortune et al

Filing 55

ORDER GRANTING 53 Motion to Modify Scheduling Order; ORDER EXTENDING Discovery Deadline and Deadline to File Dispositive Motions for all Parties signed by Magistrate Judge Gary S. Austin on 11/27/2017. Discovery due by 12/29/2017; Dispositive Motions filed by 1/31/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMAR SINGLETON, SR.,

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Plaintiff,

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vs.
DR. FORTUNE, et al.,

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Defendants.

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1:17-cv-00124-DAD-GSA-PC
ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(ECF No. 53.)
ORDER EXTENDING DISCOVERY
DEADLINE AND DEADLINE TO FILE
DISPOSITIVE MOTIONS FOR ALL
PARTIES
New Discovery Deadline:

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12/29/17

New Dispositive Motions Deadline: 01/31/18

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I.

BACKGROUND

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Lamar Singleton, Jr., (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds

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with the First Amended Complaint filed on February 19, 2016, against defendant Fortune

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(“Defendant”) on Plaintiff’s medical claim pursuant to the Eighth Amendment. (ECF No. 25.)

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On March 17, 2017, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties, including a deadline of August 17, 2017, for the parties to

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complete discovery, including the filing of motions to compel, and a deadline of October 16,
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2017, for the filing of pretrial dispositive motions. (ECF No. 43.) On June 21, 2017, Plaintiff

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filed a motion to modify the scheduling order to extend the discovery deadline for sixty days.

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(ECF No. 47.) On August 7, 2017, Plaintiff’s motion was granted, extending the discovery

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deadline to October 30, 2017, and the dispositive motions deadline to December 29, 2017.

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(ECF Nos. 47, 48.)

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On October 23, 2017, Defendant filed a motion to stay the current deadlines until after

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Plaintiff’s motion for counsel is resolved, or to modify the scheduling order. (ECF No. 53.)

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Plaintiff has not opposed the 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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Defendant requests that the court stay the deadlines set in the August 7, 2017 order until

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after ruling on Plaintiff’s motion to appoint counsel, or to modify the August 7, 2017

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scheduling order and reset the currently pending deadline for completion of discovery from

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October 30, 2017, to December 29, 2017, and to reset the currently pending deadline for

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dispositive motions from December 29, 2017, to January 31, 2018. Defense counsel, Deputy

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Attorney General Vickie Whitney (Counsel), asserts that she was assigned to this case on or

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about August 13, 2017, upon the departure of former defense counsel. (Whitney Decl. ¶1.) On

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August 13, 2017, using Plaintiff’s signed release, Counsel requested Plaintiff’s medical records

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from California State Prison, Los Angeles County. (Id. ¶2.) Counsel reviewed the status of

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discovery, found that Plaintiff’s discovery responses were deficient, and sent Plaintiff a meet
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and confer letter giving Plaintiff until September 5, 2017 to provide further and complete

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responses. (Id. ¶¶3, 4.) Plaintiff did not respond to the letter, and on September 29, 2017,

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Counsel filed a motion to compel. (Id. ¶4.)

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propounded any discovery or responded to the motion to compel. (Id.) On October 20, 2017,

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Plaintiff filed a motion for appointment of counsel, but did not mention his failure to provide

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discovery responses, to respond to defense counsel’s letter, or to respond to the motion to

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compel. (Id. ¶6.) Counsel seeks additional time to complete discovery, including the taking of

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Plaintiff’s deposition. (Id. ¶¶7, 8, 9.)

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III.

As of October 23, 2017, Plaintiff had not

DISCUSSION

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Plaintiff’s motion for appointment of counsel was denied by the court on October 25,

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2017, rendering Defendant’s motion to stay the current deadlines moot. However, the court

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finds that defense counsel has shown that even with the exercise of due diligence, she cannot

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meet the deadlines established in the court’s Discovery and Scheduling Order. Therefore, the

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court finds good cause to extend the discovery deadline and the dispositive motions deadlines

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for all parties to this action.

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Good cause appearing, the discovery deadline shall be extended to December 29, 2017,

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for all parties to this action, and the dispositive motions deadlines shall be extended to January

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31, 2018, for all parties to this action. Any further requests for extension of deadlines should

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be filed before the expiration of the existing deadlines.

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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 stay deadlines or modify the court’s Discovery and
Scheduling Order, filed on October 23, 2017, is GRANTED;

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The deadline for the completion of discovery, including the filing of motions to

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compel, is extended from October 30, 2017, to December 29, 2017, for all

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parties to this action;

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3.

The deadline for filing and serving pretrial dispositive motions is extended from
December 29, 2017, to January 31, 2018, for all parties to this action; and
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4.

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All other provisions of the Court’s March 17, 2017, Discovery and Scheduling
Order remain the same.

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IT IS SO ORDERED.
Dated:

November 27, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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