Bowell v. Montoya et al

Filing 89

ORDER DENYING Plaintiff's 85 Motion for Stay signed by Magistrate Judge Gary S. Austin on 1/15/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES BOWELL,
Plaintiff,

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vs.

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1:17-cv-00605-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION FOR STAY
(ECF No. 85.)

F. MONTOYA, et al.,
Defendants.

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I.

BACKGROUND

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James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintif f’ s

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First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for

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violation of due process under the Fourteenth Amendment, and against defendants Killmer and

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Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under

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the Eighth Amendment. (ECF No. 16.)1

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On February 24, 2020, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties, including a discovery deadline of August 24, 2020, and a

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On October 25, 2018, the court issued an order dismissing all other claims and defendants from
this case, for Plaintiff’s failure to state a claim. (ECF No. 20.)
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dispositive motions deadline of October 24, 2020. (ECF No. 63.) On July 10, 2020, on

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Defendants’ motion, the court extended the discovery deadline to November 24, 2020, and the

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dispositive motions deadline to January 24, 2021. (ECF No. 74.) Thus, discovery in this case

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was closed on November 24, 2020.
On November 25, 2020, Plaintiff filed a motion for a stay of the proceedings in this

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action.

(ECF No. 85.) On December 15, 2020, Defendants filed an opposition to the motion.

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(ECF No. 86.) On January 5, 2021, Plaintiff filed a reply to the opposition. (ECF No. 87.)

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II.

LEGAL STANDARDS
A.

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Motion for Stay

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The court has inherent authority to manage the cases before it. Landis v. N. Am. Co.,

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299 U.S. 248, 254-55 (1936) (“[T]he power to stay proceedings is incidental to the power

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inherent in every court to control the disposition of the causes on its docket with economy of

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time and effort for itself, for counsel, and for litigants. How this can best be done calls for the

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exercise of judgment which must weigh competing interests and maintain an even balance.”)

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Stays of proceedings in federal court, including stays of discovery, are committed to the

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discretion of the trial court. See, e.g., Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987).

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B.

Motion for Modification of 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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III.

PLAINTIFF’S MOTION

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Plaintiff requests a stay of the proceedings in this case for up to 180 days until he is

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released from custody following a California Supreme Court ruling on his state court habeas
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petition, which is expected in 90 days. Plaintiff anticipates that after the favorable ruling on his

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habeas petition he will be released from custody at a CDCR Parole Board Hearing. Upon release,

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Plaintiff plans to retain counsel to assist with litigation of this case. Thus, Plaintiff requests a

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stay of this case until such time as he has retained counsel.
Defendants’ Opposition

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B.

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In opposition to the motion Defendants argue that Plaintiff has not shown good cause for

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modification of the scheduling order. Defendants assert that Plaintiff has not explained why,

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despite reasonable diligence, he could not complete discovery during the nine months before it

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closed, or why, despite reasonable diligence, he cannot meet the January 24, 2021 dispositive

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motions deadline.

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Defendants also argue that Plaintiff’s release from prison, as well as his ability to hire

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counsel, is entirely speculative. Defendants point out that if Plaintiff’s habeas petition is granted

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Plaintiff will only be eligible for parole consideration by the Board of Parole Hearings; and even

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if Plaintiff is released from prison he has not shown how his release would enable him to hire

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counsel to prosecute this case.

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In response, Plaintiff argues that a stay should be granted because he has contracted

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Covid-19, and the stay should last until the pandemic is under control. Plaintiff contends that a

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team of lawyers could properly investigate Defendants’ entire activity during Defendants’ CDCR

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employment and interview 300 prisoners who were present during the time as witnesses. Plaintiff

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also suggests that an in camera review of Defendants’ personnel files might raise questions about

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Defendants’ credibility.

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C.

Discussion

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The court finds no good cause to modify its scheduling order and impose a stay of this

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action until Plaintiff is released from custody and retains counsel. Discovery was closed in this

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case on November 24, 2020 after the parties had nine months to conduct discovery.

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additional discovery that Plaintiff expects his retained counsel to conduct is only speculative, and

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he has not explained why his ability to retain counsel will improve when he is released from

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custody. Plaintiff has not argued that he requires an extension of the dispositive motions deadline
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The

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and in fact, Plaintiff

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requesting more time for discovery. Plaintiff has not shown that even with the exercise of due

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diligence he could not meet the requirements of the scheduling order. Therefore, the court shall

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deny Plaintiff’s motion for stay.

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IV.

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filed a motion for summary judgment on August 24, 2020, without

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for stay, filed

on November 25, 2020, is denied.

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IT IS SO ORDERED.
Dated:

January 15, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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