Robinson v. Davey et al

Filing 71

ORDER GRANTING Defendants Peterson and German's 70 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 8/9/2020. Discovery due by 4/2/2021; Dispositive Motions filed by 6/2/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY L. ROBINSON,

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Plaintiff,

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vs.

1:17-cv-01524-DAD-GSA-PC
ORDER GRANTING DEFENDANTS
PETERSON AND GERMAN’S MOTION
TO MODIFY SCHEDULING ORDER
(ECF No. 70.)

DAVE DAVEY, et al.,

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ORDER EXTENDING DISCOVERY
DEADLINE AND DEADLINE TO FILE
DISPOSITIVE MOTIONS FOR ALL
PARTIES

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New Discovery Deadline:

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New Dispositive Motions Deadline: June 2, 2021

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Defendants.

April 2, 2021

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I.

BACKGROUND

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Anthony L. Robinson (“Plaintiff”) is a 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 on Plaintiff’s

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First Amended Complaint filed on July 2, 2018, against defendant C/O H. German for use of

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excessive force and against defendants Sgt. A. Peterson and S. Gonzales-Thompson (LVN) for

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providing inadequate medical care in violation of the Eighth Amendment. (ECF No. 24.)

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On January 2, 2020, the court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties, including a discovery deadline of July 2, 2020, and a dispositive
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motions deadline of September 2, 2020. (ECF No. 61.) On April 15, 2020, the court granted

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defendants Peterson and German’s motion to modify the Scheduling Order, extending the

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discovery deadline to October 2, 2020, and the dispositive motions deadline to December 2, 2020,

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for all parties to this action. (ECF No. 64.) On August 3, 2020, defendants Peterson and German

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filed another motion to modify the Scheduling Order. (ECF No. 70.)

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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).

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Defendants Peterson and German request the court to extend the deadline to conduct

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discovery and the deadline to file dispositive motions by 120 days each because due to the

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COVID-19 crisis, defense counsel has still not been able to depose Plaintiff. This latest request

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will extend the deadline to conduct discovery to April 2, 2021, and the deadline to file dispositive

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motions to June 2, 2021.

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(OAG) received a memorandum from the California Department of Corrections and

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Rehabilitation (CDCR) informing the AOG that CDCR is “attempting to maintain inmate and

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staff safety amid the COVID-19 pandemic” which makes “transport and inmate movement

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within the institutions difficult, and, in some cases, dangerous,” and CDCR is generally

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requesting continuances of all depositions through the end of August 2020. (Declaration of

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David E. Kuchinsky at ¶ 3, Exhibit A.)

Defense counsel explains that the Office of the Attorney General

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

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the court’s Discovery and Scheduling Order. Defendants Peterson and German have shown that

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even with the exercise of due diligence they cannot meet the requirements of the above mentioned
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order. Therefore, the motion to modify the Scheduling Order filed by defendants Peterson and

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German on August 3, 2020, shall be granted.

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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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Order, filed on August 3, 2020, is GRANTED;
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The deadline for the completion of discovery is extended from October 2, 2020
to April 2, 2021, for all parties to this action;

3.

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Defendants Peterson and German’s motion to modify the court’s Scheduling

The deadline for filing and serving pretrial dispositive motions is extended from
December 2, 2020 to June 2, 2021, for all parties to this action; and

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All other provisions of the court’s January 2, 2020 Discovery and Scheduling
Order remain the same.

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IT IS SO ORDERED.
Dated:

August 9, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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