Dillingham v. Garcia et al

Filing 88

ORDER DENYING Defendant's 87 Motion to Modify Scheduling Order, Without Prejudice, signed by Magistrate Judge Erica P. Grosjean on 12/16/2019. (Orozco, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DILLINGHAM,
Plaintiff,

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v.
F. GARCIA,

Case No. 1:18-cv-00579-LJO-EPG (PC)
ORDER DENYING DEFENDANT’S
MOTION TO MODIFY SCHEDULING
ORDER, WITHOUT PREJUDICE
(ECF NO. 87)

Defendant.

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Jerry Dillingham (“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 action is proceeding

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“on Plaintiff’s original complaint (ECF No. 1), on Plaintiff’s claims against Defendant Garcia

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for conspiracy, retaliation in violation of the First Amendment, and excessive force and failure

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to protect in violation of the Eighth Amendment.” (ECF No. 21, p. 4).

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On December 13, 2019, Defendant filed a motion to modify the scheduling order. (ECF

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No. 87). Defendant points out that there are pending findings and recommendations on

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Plaintiff’s motion to amend and Defendant’s motion to dismiss, and “respectfully requests that

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the scheduling order currently in effect be vacated pending the District Court’s ruling on the

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Findings and Recommendations. Upon a final ruling by the District Court, Defendant requests

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that this Court issue a new scheduling order with modified discovery and dispositive motion

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deadlines.” (Id. at 1-2).
Defendant seeks the modification because, “[g]iven that the District Court has not

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issued a ruling yet, proceeding on the basis of the current discovery deadlines would result in a

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scenario where Defendant must consider either to seek discovery prematurely, or forego

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discovery that may become necessary in light of the District Court’s ruling. This possibility is

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bolstered by the fact that any claims subject to the Motion to Dismiss and Motion to Amend

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subsequently may be subject to Plaintiff’s objections and further litigation, which would not be

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resolved until the District Court issues a ruling. However, the District Court is unlikely to issue

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a ruling by the non-expert discovery cutoff date, and may not issue a ruling by the dispositive

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motion filing deadline, necessitating this motion to modify the scheduling order.” (Id. at 2-3).

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The Court does not find good cause to modify the schedule at this time. The findings

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and recommendations recommend dismissal of only one claim against defendant Garcia.

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Dismissal of this claim would not change the scope of discovery. It is true that Plaintiff is

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seeking leave to amend to add additional claims and defendants, and if Plaintiff’s motion is

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granted the scope of discovery would change significantly. However, the Court has

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recommended denying Plaintiff’s motion to amend. Thus, if the findings and recommendations

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are adopted in full, the scope of discovery will not change and there will be no need to modify

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the schedule.

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However, if the findings and recommendations are not adopted in full and additional

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claims or defendants are added to the case, the Court will modify the schedule. As to

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Defendant’s concern that the District Court may not issue a ruling by the dispositive motion

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filing deadline, the deadline is over three months away. If a ruling has not been issued twenty-

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one days prior to the deadline, Defendant may renew his motion.

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Accordingly, based on the foregoing, IT IS ORDERED that Defendant’s motion to
modify the scheduling order is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

December 16, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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