Smith v. Weiss et al

Filing 52

ORDER GRANTING Defendants' Third 51 Motion to Modify Discovery and Scheduling Order Deadlines; ORDER CLARIFYING Deadline for Plaintiff to File Opposition or Response to Defendants' Motion to Dismiss; Twenty-One (21) Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 9/16/2020. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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Plaintiff,

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v.

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Case No. 1:18-cv-00852-NONE-BAM (PC)
ORDER GRANTING DEFENDANTS’ THIRD
MOTION TO MODIFY DISCOVERY AND
SCHEDULING ORDER DEADLINES
(ECF No. 51)

WEISS, et al.,

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Defendants.

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ORDER CLARIFYING DEADLINE FOR
PLAINTIFF TO FILE OPPOSITION OR
RESPONSE TO DEFENDANTS’ MOTION
TO DISMISS
(ECF No. 50)
TWENTY-ONE (21) DAY DEADLINE

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Plaintiff Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action

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proceeds against Defendants Weiss, Hurtado, and Zavaleta1 for the excessive force incident of

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November 15, 2013, in violation of the Eighth Amendment.

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Following Plaintiff’s unsuccessful motion to quash or stay his deposition and Defendants’

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subsequent motions to modify the discovery and scheduling order deadlines due to the COVID-19

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crisis, the current discovery deadline is October 27, 2020, and the current dispositive motion

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deadline is December 28, 2020. (ECF No. 47.)

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Erroneously sued as “Zavleta.”
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On August 12, 2020, Plaintiff filed a renewed motion for relief from judgment or order

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regarding the Court’s orders rejecting his prior motions to be exempted from a deposition, as well

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as a renewed motion for a protective order prohibiting Defendants from taking Plaintiff’s

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deposition. (ECF Nos. 48, 49.) On September 2, 2020, Defendants filed a motion to dismiss that

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includes their opposition to Plaintiff’s motion for a protective order and motion for relief from

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judgment or order. (ECF No. 50.) Defendants also filed a third motion to modify the discovery

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and scheduling order deadlines. (ECF No. 51.)

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In their motion to modify the discovery and scheduling order, Defendants state that, due to

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Plaintiff’s pending motions to prohibit his deposition and Defendants’ pending motion to dismiss,

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there is uncertainty as to whether Defendants will need to depose Plaintiff. Defendants argue that

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they have exercised diligence in this case, timely answering the complaint and noticing Plaintiff’s

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original deposition for September 24, 2019. After Plaintiff’s refusal to participate in the

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deposition and the Court’s extension of the deadline for Plaintiff’s deposition, Defendants

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attempted to reschedule the deposition for April 16, 2020. However, due to COVID-19-related

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challenges, Defendants have been unable to take Plaintiff’s deposition, and have received two

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extensions of the discovery and dispositive motion deadlines. Although Defendants intended to

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re-notice Plaintiff’s deposition in advance of the current discovery deadline, Plaintiff’s newest

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motions indicating his refusal to be deposed, together with Defendant’s pending motion to

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dismiss, may obviate the need for any discovery or dispositive motions in this case. Accordingly,

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Defendants request that, if necessary, the Court provide them 90 days from a ruling on the

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pending motions to depose Plaintiff and bring any necessary motions to compel, and 120 days

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from a ruling on the pending motions to file a dispositive motion. (Id.)

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Plaintiff has not yet had an opportunity to file a response, but the Court finds a response is
unnecessary. The motion is deemed submitted. Local Rule 230(l).
Having considered the request, the Court finds good cause to grant the requested relief.

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Fed. R. Civ. P. 16(b)(4). Defendants have worked diligently to meet the deadlines set by the

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Court for taking Plaintiff’s deposition and filing dispositive motions, but those deadlines are no

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longer feasible due to the circumstances surrounding the COVID-19 outbreak. Furthermore, the
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parties’ motions are pending before the Court, and discovery and dispositive motions may no

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longer be necessary depending on the outcome of those motions. Finally, the Court finds that

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Plaintiff will not be prejudiced by the relief granted here.

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Finally, the Court notes that because Defendants have filed their motion to dismiss

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together with their opposition to Plaintiff’s motions, it has created some ambiguity as to the filing

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deadlines for Plaintiff’s opposition to the motion to dismiss and his reply to Defendants’

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opposition of his motions. Therefore, the Court finds it appropriate to clarify and extend the

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deadline for Plaintiff to file his opposition and reply, which may be combined in one document, if

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he chooses. Defendants will be permitted the usual seven days to file a reply to Plaintiff’s

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opposition after it is docketed.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Defendants’ third motion to modify discovery and scheduling order deadlines, (ECF

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No. 51), is GRANTED;
2. The discovery and non-exhaustion dispositive motion deadlines set forth in the June

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26, 2020 order granting Defendants’ second motion to modify discovery and

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scheduling order deadlines, (ECF No. 47), are VACATED;

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3. The discovery and non-exhaustion dispositive motion deadlines will be reset, as
necessary, following resolution of the parties’ pending motions;

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4. Plaintiff’s opposition to Defendants’ motion to dismiss and reply to Defendants’

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opposition of his motions are both due twenty-one (21) days from the date of service

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of this order; and

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5. If Plaintiff fails to respond to Defendants’ motion to dismiss in compliance with

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this order, the Court will consider the motion unopposed.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 16, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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