Larry Smith v. Gonzales et al

Filing 51

ORDER GRANTING Defendants' 45 Motion to Modify Scheduling Order; ORDER Staying Deadlines for Discovery and for Filing Dispositive Motions, Pending Resolution of Defendants' Exhaustion Motion signed by Magistrate Judge Gary S. Austin on 09/05/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY SMITH,

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Plaintiff,

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vs.

1:17-cv-00436-DAD-GSA-PC
ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY SCHEDULING
ORDER
(ECF No. 45.)

SGT. J. GONZALES, et al.,

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ORDER STAYING DEADLINES FOR
DISCOVERY AND FOR FILING
DISPOSITIVE MOTIONS, PENDING
RESOLUTION OF DEFENDANTS’
EXHAUSTION MOTION
(ECF No. 33.)

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DEADLINES STAYED:

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Defendants.

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Discovery Deadline

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Dispositive Motions Deadline

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I.

BACKGROUND

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Larry Smith (“Plaintiff”) is a state 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 Plaintiff’s

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First Amended Complaint filed on June 23, 2017, against defendants Sergeant Gonzales,

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Correctional Officer (C/O) Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz for

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use of excessive force in violation of the Eighth Amendment; against defendants C/O Fritz and

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C/O Scaife for failure to protect Plaintiff in violation of the Eighth Amendment; and against

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defendant Sergeant Gonzales for retaliation in violation of the First Amendment.1 (ECF No. 12.)

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On February 4, 2019, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties, including a deadline of August 4, 2019, for the parties to

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complete discovery, including the filing of motions to compel, and a deadline of October 4, 2019,

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for the filing of pretrial dispositive motions. (ECF No. 33.)

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On July 19, 2019, Defendants filed a motion to modify the Discovery and Scheduling

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Order. (ECF No. 45.) On August 5, 2019, Plaintiff filed an opposition to the motion. (ECF No.

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46.) On August 12, 2019, Defendants filed a reply to the opposition. (ECF No. 49.)
Defendants’ motion to modify the Discovery and Scheduling Order is now before the

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court. Local Rule 230(l).

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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).
Defendants’ Motion

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A.

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Defendants move to vacate and reschedule the deadlines to complete discovery and to

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file dispositive motions in this case. On April 30, 2019, Defendants filed a motion for summary

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judgment for failure to exhaust which is now pending and if granted, this case will be dismissed.

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If the motion is not granted, Defendants anticipate conducting discovery and filing a merits-based

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motion for summary judgment. Defense counsel declares that he has been diligent in defending

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The court issued an order dismissing all other claims and defendants from this case on April 19,
2018, for failure to state a claim. (ECF No. 19.)

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this action, filing an answer for Defendants on February 1, 2019, and thereafter preparing a

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motion for summary judgment on the ground of failure to exhaust administrative remedies, which

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was filed on April 30, 2019. (Matheson Decl., ECF No. 45-1 at 4 ¶ 2.) Because the Magistrate

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Judge’s findings and recommendations have not yet issued, Defendants expect their exhaustion

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motion will not be decided until after the time to complete discovery has passed. Further, since

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the court’s ruling on the exhaustion motion may dispose of the case, Defendants request the court

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to vacate the discovery and dispositive motions deadlines to be re-set if necessary after the court’s

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final ruling on the exhaustion summary judgment motion. Defendants contend that Plaintiff will

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not be prejudiced by the brief extension.
Plaintiff’s Opposition

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B.

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In opposition, Plaintiff argues that the parties had adequate notice of the discovery and

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dispositive motions deadlines and therefore the deadlines should not be extended. Plaintiff

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argues that defense counsel is wasting the court’s time and stalling, and that defense counsel

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tends to stretch the truth.
Defendants’ Reply

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C.

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Defendants argue that they have been diligent in the litigation of this case, meeting the

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early initial deadline to file their exhaustion summary motion on April 30, 2019. While delays

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occurred because both parties requested and were granted extensions of time to respond to the

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pleadings, Defendants argue that they were reasonably diligent. Defendants deny wasting the

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court’s time and stalling, and they anticipate a rather brief extension of the existing deadlines.

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Defendants argue there is no prejudice to Plaintiff where no trial date has been set and there have

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been no previous motions to modify the Discovery and Scheduling Order.

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D.

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The court, based upon the above arguments, finds good cause to vacate the outstanding

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deadlines for all parties to this action and re-set the deadlines, if necessary, after the court has

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issued its final order on Defendants’ exhaustion motion for summary judgment. .

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III.

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Discussion

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendants’ motion to modify the Court’s Discovery and Scheduling Order, filed
on July 19, 2019, is GRANTED;

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The deadlines for the completion of discovery and for the filing of dispositive

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motions are stayed, pending resolution of Defendants’ exhaustion motion for

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summary judgment filed on April 30, 2019;

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3.

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All other provisions of the court’s February 4, 2019, Discovery and Scheduling
Order remain the same; and

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If necessary, the court shall issue a new scheduling order after final resolution of
Defendants’ exhaustion motion for summary judgment.

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IT IS SO ORDERED.
Dated:

September 5, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE