(PC) Howell v. Galan et al

Filing 37

ORDER GRANTING IN PART 36 Defendants' Second Motion to Modify Discovery and Scheduling Order, signed by Magistrate Judge Barbara A. McAuliffe on 10/14/2020. The discovery and dispositive motion deadlines are VACATED. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,

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Case No. 1:19-cv-00567-NONE-BAM (PC)

Plaintiff,

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v.

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ORDER GRANTING IN PART
DEFENDANTS’ SECOND MOTION TO
MODIFY DISCOVERY AND SCHEDULING
ORDER

GALAN, et al.,

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(ECF No. 36)
Defendants.

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Plaintiff Kareem J. Howell (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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

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Plaintiff’s complaint against Defendants Galan and Guzman for deliberate indifference to serious

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medical needs for failing to provide heart medication and against Defendants Guzman and

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Sanchez for retaliation.

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On February 11, 2020, the Court issued a Discovery and Scheduling Order setting the

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deadline for filing motions for summary judgment for failure to exhaust administrative remedies

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for May 11, 2020. (ECF No. 24.) Pursuant to the Court’s April 10, 2020 order granting

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Defendants’ motion to modify the scheduling order, the deadline for filing motions for summary

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judgment for failure to exhaust administrative remedies was extended to August 7, 2020. (ECF

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No. 30.) Defendants’ motion for summary judgment for failure to exhaust is fully briefed and

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pending before the Court. (ECF Nos. 31, 32, 35.)
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On October 13, 2020, Defendants filed the instant motion to modify the Court’s discovery

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and scheduling order to extend the deadline to notice and conduct depositions and the deadline for

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merit-based dispositive motions. (ECF No. 36.) The Court finds a response unnecessary and the

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motion is deemed submitted. Local Rule 230(l).

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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.
Defendants state that good cause exists to grant the motion because defense counsel has

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been unable to conduct a deposition of Plaintiff, in person or by video, due to the outbreak of

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COVID-19 and CDCR’s request that the Attorney General’s Office request continuances for

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depositions to minimize inmate movement and exposure to COVID-19 and due to the demands

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on existing video conference resources. (ECF No. 36.) In early October 2020, counsel was

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informed that it was possible to start working with institutions to set video conference

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depositions, subject to availability at the particular institution. Despite immediately reaching out

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to Plaintiff’s institution, counsel was not able to schedule and notice a deposition sufficiently in

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advance of the discovery deadline in this action. Defendants further argue that an extension of

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the deadlines in this case is also appropriate because Defendants’ exhaustion-based summary

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judgment motion is currently pending before the Court, and if granted in part or in whole it would

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narrow the scope of any deposition or a merits-based motion for summary judgment, or

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completely negate the need for additional discovery or dispositive motions. Defendants request

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that the discovery deadline be extended to 45 days after the Court rules on the pending

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exhaustion-based motion for summary judgment, and that the deadline to file a merits-based

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motion for summary judgment be extended to 90 days after the Court’s ruling. (Id.)

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Having considered Defendants’ moving papers, the Court finds good cause to modify the

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discovery and dispositive motion deadlines in this action. However, the Court finds that vacating
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the current deadlines, to be reset as necessary, is appropriate under the circumstances. Due to the

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COVID-19 situation and Defendants’ subsequent inability to conduct a deposition of Plaintiff is

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outside the parties’ control, and Defendants have demonstrated diligence in attempting to

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schedule Plaintiff’s deposition. Further, the Court finds it would be an efficient use of the

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resources of the Court and the parties to address any exhaustion issues prior to reaching the merits

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of this action. Finally, the Court finds that the continuance granted here will not result in

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prejudice to Plaintiff, where the exhaustion-based summary judgment motion remains pending.

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Based on the foregoing, Defendants’ second motion to modify the scheduling order, (ECF

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No. 36), is HEREBY GRANTED IN PART. The discovery and dispositive motion deadlines are

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VACATED. As necessary and appropriate, the Court will reset the deadlines following

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resolution of the pending motion for summary judgment.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 14, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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