(PC) Smith v. Parriot et al

Filing 55

ORDER DENYING Plaintiff's 53 Motion to Modify Scheduling Order to Extend the Discovery Deadline signed by Magistrate Judge Gary S. Austin on 1/10/2022. (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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1:19-cv-00286-JLT-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION TO MODIFY SCHEDULING
ORDER TO EXTEND THE DISCOVERY
DEADLINE
(ECF No. 53.)

vs.
PARRIOT, et al.,

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Defendants.

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I.

BACKGROUND

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

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forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now

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proceeds with the First Amended Complaint filed on September 10, 2020, against defendants

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Cantu, W. Gutierrez, and Mattingly (“Defendants”) for use of excessive force in violation of the

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Eighth Amendment. (ECF No. 22.) On September 15, 2021, Defendants filed a motion for

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summary judgment on the grounds that Plaintiff failed to exhaust administrative remedies and
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also pursuant to Heck v. Humphrey.1 (ECF No. 47.) Plaintiff has not filed an opposition to the

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motion for summary judgment.

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On November 8, 2021, the court issued an order imposing a stay of discovery, except for

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discovery pertaining to the issues raised in Defendants’ motion for summary judgment pending

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resolution of the motion for summary judgment. (ECF No. 51.) Plaintiff was granted until

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November 22, 2021, to serve discovery requests related to the issues in the motion for summary

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judgment. (ECF No. 51 at 3:23-27.) The discovery deadline was extended to January 15, 2022,

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and Plaintiff was ordered to file his opposition to the motion for summary judgment on or before

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January 15, 2022.

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On January 3, 2022, Plaintiff filed a motion to modify the Discovery and Scheduling

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Order to extend the discovery deadline for ninety days until March 27, 2022. (ECF No. 53.)

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II.

LEGAL STANDARDS

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A.

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Pursuant to Federal Rule of Civil Procedure 56(d)(2), if Plaintiff shows by affidavit or

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declaration that for specified reasons he cannot present facts to oppose Defendants’ motion for

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summary judgment, the Court may defer ruling on the motion to allow time for further discovery.

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In order to gain a continuance under Rule 56(d), Plaintiff must identify by affidavit the specific

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facts that further discovery would reveal, and explain why those facts would preclude summary

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judgment. Tatum v. City and County of Sacramento, 441 F.3d 1090, 1100 (9th Cir. 2006);

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Tuvalu v. Woodford, No. CIV S-04-1724 RRB KJM P, 2007 WL 2900175, at 1-4 (E.D. Cal.

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Sept. 28, 2007).

Rule 56

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B.

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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

Modification of Scheduling Order

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Heck v. Humphrey, 512 U.S. 477 (1994).
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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 an extension of the discovery deadline because “defendants have once

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again unlawfully objected to requested discovery, discovery which is essential in my establishing

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the point that the Department’s administrative grievance process was unavailable to me back in

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2015 just as it is now.” (ECF No. 53 at 3:14-16.)

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Plaintiff also cites the following reasons he seeks additional time for discovery:

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1.

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Before the Federal Courts of this state I currently have the following documents
needed to be lodged:

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Traverse – Smith v. Clark 1:21-cv-01346-NONE-EPG-HC;

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Objections to F&R – Smith v. Clark 1:21-cv-01589-NONE-EPG-HC;

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Objections to order to show cause -- Smith v. Clark 1:21-cv-01554-

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NONE-EPG-HC;
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2.

Reply brief – Smith v. Gibbs, et al. 9th Cir. Case no. 21-16080.

I need to prepare for a preliminary hearing to be held before the Kings County

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Superior Court on January 19th, 2022 in the action People v. Smith, case no. 21-

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cv-4366, preparation which would include my moving for sanctions being

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imposed against the People for discovery violations as I appear in pro per before

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said court.

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3.

These obligations make my filing of an objection to the defendants’ motion for

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Rule 56 relief on or before January 15, 2022 impractical, since I do not have the

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records necessary to support my contentions.

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(ECF No. 53 at 3-4.)

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Plaintiff has submitted a declaration to show why the discovery in question is necessary

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to successfully defend against Defendants’ motion for summary judgment. (ECF No. 53 at 3:183

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20, 5.) Plaintiff discusses assaults against him during his incarceration in 2013, 2014, 2015, and

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2016, arguing that correctional staff falsely claimed he committed assaultive action necessitating

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their use of force. (Id. at 5 ¶ 2 – 6 ¶¶ 8, 10.) Attached to the declaration is a copy of Plaintiff’s

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November 18, 2021 request for production of documents directed to Defendants. (Id. at 12, Exh.

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A.) Also attached is documentation of several prison appeals filed by Plaintiff, Rules Violation

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Reports, crime/incident reports, and medical records.

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IV.

DISCUSSION

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Plaintiff’s motion to extend discovery fails to provide information required under Rule

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56 or Rule 60. Plaintiff has not identified specific facts pertaining to the issues raised in the

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motion for summary judgment that further discovery would reveal, nor has he explained why

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those facts would preclude summary judgment. In fact, Plaintiff has not shown that any of the

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assaults, Rules Violation Reports, crime/incident reports, or medical records referred to in

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Plaintiff’s motion pertain to an excessive force incident on February 25, 2015, the date of the

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excessive force incident at issue in this case.

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Plaintiff has submitted a copy of his November 18, 2021, request for production of

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documents arguing that Defendants failed to provide adequate responses to his requests. (Id. at

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11, Exh. A.) However, Plaintiff has not provided copies of Defendants’ responses for the court’s

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review. Without seeing the responses the court cannot determine if Defendants failed to

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adequately respond, or whether Plaintiff is entitled to more discovery for that reason.

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Plaintiff made only one request in his November 18, 2021 request for production of

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documents concerning the issues raised in the pending motion for summary judgment,

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specifically when he requested documentation of grievances he filed from March 13, 2013

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through September 2. 2015.

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documentation of those grievances to Plaintiff in their motion for summary judgment. (ECF No.

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47-4 at 6-7.) The court finds therefore that Plaintiff has not demonstrated diligence in his efforts

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to complete discovery by the January 3, 2022 deadline, or to meet the January 15, 2022 deadline

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to oppose Defendants’ motion for summary judgment. Therefore, Plaintiff’s motion to extend

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the discovery deadline shall be denied.

(Id.)

It appears from the record that Defendants provided

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V.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to extend

the discovery deadline, filed on January 3, 2022, is denied.

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IT IS SO ORDERED.
Dated:

January 10, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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