Robertson v. Garcia et al.

Filing 67

ORDER DENYING 63 Plaintiff's Motion to Compel; ORDER GRANTING 65 Defendant's Motion to Modify Discovery and Scheduling Order by Extending the Dispositive Motion Deadline, signed by Magistrate Judge Barbara A. McAuliffe on 1/19/2023. Dispositive Motion Deadline: March 20, 2023. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WAYNE JEROME ROBERTSON,

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Plaintiff,

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v.

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GARCIA, et al.,

Case No. 1:17-cv-01022-ADA-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO COMPEL
(ECF No. 63)

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ORDER GRANTING DEFENDANT’S
MOTION TO MODIFY DISCOVERY AND
SCHEDULING ORDER BY EXTENDING
THE DISPOSITIVE MOTION DEADLINE
(ECF No. 65)

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Dispositive Motion Deadline: March 20, 2023

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Defendants.

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I.

Background

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Plaintiff Wayne Jerome Robertson (“Plaintiff”) is a state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended

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complaint against Defendant Garcia (“Defendant”) for excessive force in violation of the Eighth

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Amendment for spraying Plaintiff with OC spray on January 24, 2017. (ECF No. 57.)

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Pursuant to the Court’s June 15, 2022 order lifting the stay of discovery and resetting the

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discovery and dispositive motion deadlines, the deadline for completion of all discovery,

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including filing all motions to compel discovery, was September 13, 2022. (ECF No. 58.) On

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September 16, 2022, the Court further extended the discovery deadline, “only for the purpose of

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resolving any dispute regarding Defendant’s August 9, 2022 discovery requests.” (ECF No.

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62.) In that same order, the Court extended the deadline for filing all dispositive motions (other
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than a motion for summary judgment for failure to exhaust) to December 12, 2022. (Id.)
On November 4, 2022, Plaintiff filed a motion to compel regarding Defendant’s responses

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to Plaintiff’s Requests for Production of Documents, Set Two, which were apparently served on

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Defendant on September 11, 2022. (ECF No. 63.) Defendant filed an opposition on November 9,

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2022. (ECF No. 64.) Plaintiff did not file a reply brief, and the deadline to do so has expired.

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In addition, on December 1, 2022, Defendant filed a motion to modify the discovery and

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scheduling order by extending the dispositive motion deadline by 60 days from the date the Court

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rules on Plaintiff’s motion to compel. (ECF No. 65.) Plaintiff did not file an opposition, and the

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deadline to do so has expired.
Plaintiff’s motion to compel and Defendant’s motion to modify the discovery and

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scheduling order are deemed submitted. Local Rule 230(l).

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II.

Plaintiff’s Motion to Compel

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In his motion to compel, Plaintiff states that he filed a request to Defendant in a good faith

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effort to obtain evidence, specifically photographs and a new (plastic) urinalysis bottle. (ECF No.

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63.) Plaintiff contends that Defendant is well aware that Plaintiff is at a disadvantage in obtaining

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the requested evidence. Further, the urinalysis bottle is not contraband or dangerous, and presents

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no threat or serious threat to the facility’s security or the safety of inmates or staff, because

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prisoners are allowed to have other items inside their cells and living areas, such as TVs, radios,

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hot pots, and battery chargers. The requested photos also do not pose any threat, as the photos are

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for trial. Without a court order for Defendant to provide Plaintiff with the requested evidence,

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Plaintiff, who remains confined in prison, cannot show the court that Defendant used excessive

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force against Plaintiff and violated Plaintiff’s Eighth Amendment rights. (Id.)

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In opposition, Defendant contends that Plaintiff’s motion should be denied as untimely,

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because it was filed after the September 13, 2022 extended deadline for completion of all

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discovery, including motions to compel. (ECF No. 64.) The October 31, 2022 discovery

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deadline was specifically for the completion of Defendant’s August 9, 2022 discovery requests.

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(See ECF No. 62.) As to the specific discovery requests, Defendant argues that Requests for

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Production (“RFP”) Nos. 1 and 3, regarding the production of photographs, should be denied
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because they are not in Defendant’s possession and Defendant is not obligated to create new

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documents for Plaintiff. As to RFP No. 2, requesting a urinalysis bottle, Defendant reiterates that

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this item, in Plaintiff’s possession, is considered “dangerous contraband,” even when made of

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plastic, and whether Plaintiff is allowed to possess it is not related to whether other inmates are

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allowed to possess other forms of personal property such as battery chargers or radios. (Id.)
Defendant is correct that Plaintiff’s motion to compel is untimely. As noted previously,

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the discovery deadline was extended from September 13, 2022 to October 31, 2022 solely for the

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purpose of resolving Defendant’s outstanding discovery requests. (ECF No. 62.) Therefore,

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Plaintiff’s discovery requests were required to be served “sufficiently in advance of the discovery

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deadline” of September 13, 2022 “to permit time for a response and time to prepare and file a

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motion to compel. (ECF Nos. 32, p. 2; 58, p. 2.)

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Plaintiff served his Second Set of RFPs on September 11, 2022, two days before the

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discovery deadline. (ECF No. 65-1, p. 7.) Although this was not “sufficiently in advance of the

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discovery deadline to permit time for a response” as directed by the Court’s orders setting the

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discovery deadlines, Defendant demonstrated good faith by serving responses to the requests on

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October 14, 2022. While Plaintiff arguably showed diligence by quickly submitting the motion to

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compel on November 1, 2022, the motion was nevertheless well past the September 13, 2022

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deadline for completion of discovery, and was even beyond the October 31, 2022 deadline for

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completion of Defendant’s outstanding discovery requests.
Accordingly, Plaintiff’s motion to compel is denied as untimely.

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III.

Defendant’s Motion to Modify Discovery and Scheduling Order
Defendant requests that the Court extend the current dispositive motion deadline of

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December 12, 2022, by 60 days from the date the Court rules on Plaintiff’s motion to compel.

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(ECF No. 65.) Defendant contends that the extension is necessary in light of the pending motion

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to compel and because defense counsel will be in trial the week of December 12. The trial was

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originally scheduled to start the week of November 28, but was recently continued to the week of

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December 12. (ECF No. 65-1, p. 2.) Defense counsel further states that a continuation of the

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dispositive motion deadline was discussed with Plaintiff on November 30, 2022, but he did not
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agree to join in the request. (ECF No. 65-2, p. 3.)
Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and

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with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily

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considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot

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reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was

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not diligent, the inquiry should end. Id.

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Having considered Defendant’s motion, the Court finds good cause to grant the motion to

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modify the discovery and scheduling order. Although Plaintiff apparently did not agree to the

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extension during the November 30, 2022 discussion with defense counsel, in light of Plaintiff’s

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failure to oppose the motion, the Court further finds that Plaintiff will not be prejudiced by the

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extension granted here.

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IV.

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Order
Based on the foregoing, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to compel, (ECF No. 63), is DENIED;

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2. Defendant’s motion to modify the discovery and scheduling order, (ECF No. 65), is

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GRANTED;
3. The deadline for filing all dispositive motions (other than a motion for summary judgment
for failure to exhaust) shall be March 20, 2023; and

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4. Any request for an extension of this deadline must be filed on or before the expiration of

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the deadline. However, the parties are advised that an extension of time will only be

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granted upon a clear showing of good cause.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 19, 2023

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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