(PC) Gann v. Valley State Prison et al

Filing 40

ORDER GRANTING Defendants' 39 Motion to Modify Scheduling Order; ORDER EXTENDING Exhaustion Motion Filing Deadline From November 24, 2021 to January 24, 2022, signed by Magistrate Judge Gary S. Austin on 11/16/2021. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHANIEL MARCUS GANN, 12 13 14 15 16 Plaintiff, vs. 1:19-cv-01797-DAD-GSA-PC ORDER GRANTING DEFENDANTS’ MOTION TO MODIFY SCHEDULING ORDER (ECF No. 39.) VALLEY STATE PRISON, et al., Defendants. ORDER EXTENDING EXHAUSTION MOTION FILING DEADLINE FROM NOVEMBER 24, 2021 TO JANUARY 24, 2022 17 18 Plaintiff Nathaniel Marcus Gann is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with 20 Plaintiff’s First Amended Complaint filed on February 7, 2020, against Defendants Warden 21 Raythel Fisher, Jr., Dining Hall Officer Paez, and Culinary Staff Members Anguiano, Chapas, 22 Lucero, Marquez, Cruz, and Moosebaur for violation of RLUIPA, violation of the First 23 Amendment Free Exercise Clause, and adverse conditions of confinement in violation of the 24 Eighth Amendment; against Defendants Warden Raythel Fisher, Jr., and Moosebaur for failure 25 to protect Plaintiff in violation of the Eighth Amendment; and, against Defendant Moosebaur for 26 retaliation in violation of the First Amendment. (ECF No. 20.)1 27 28 1 On June 7, 2021, the court issued an order dismissing all other claims and defendants from this case, for Plaintiff’s failure to state a claim. (ECF No. 30.) 1 1 On August 24, 2021, the court issued a Discovery and Scheduling Order establishing 2 pretrial deadlines for the parties, including an exhaustion motion filing deadline of November 3 24, 2021. (ECF No. 36.) On November 12, 2021, Defendants filed a motion to modify the 4 Scheduling Order. (ECF No. 39.) 5 II. MOTION TO MODIFY SCHEDULING ORDER 6 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 7 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 8 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 9 modification of a scheduling order must generally show that even with the exercise of due 10 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 11 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 12 order fails to show due diligence the inquiry should end and the court should not grant the motion 13 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 14 Here, Defendants request an extension of the exhaustion motion filing deadline from 15 November 24, 2021 to January 24, 2022, because of circumstances unforeseen by defense 16 counsel when the court issued its August 24, 2021 order. Due to the circumstances, Defendants 17 require additional time to review Plaintiff’s discovery responses, take Plaintiff’s deposition, 18 prepare any discovery motions that may be necessary, and then prepare the summary judgment 19 motion documents and supporting declarations. Defense counsel is “currently assigned to 20 seventeen other matters, which all have upcoming deadlines.” (Decl. of T. Lessner, ECF No. 39- 21 2 at 2-6 ¶ 3.) Furthermore, counsel “had to continue Plaintiff’s deposition at the last minute” 22 until “approximately one month after the deadline to file an exhaustion motion expires,” because 23 the prison “could not accommodate the virtual deposition set for November 15, 2021.” (Id. at 6 24 ¶¶ 6, 7.) 25 Based on the above the court finds good cause to grant Defendants’ motion and extend 26 the exhaustion motion filing deadline in the court’s Discovery and Scheduling order. Defendants 27 have shown that even with the exercise of due diligence, they cannot meet the requirements of 28 the order. Therefore, Defendants’ motion to modify the exhaustion motion filing deadline in the 2 1 Discovery and Scheduling Order from November 24, 2021 to January 24, 2022, shall be granted. 2 III. CONCLUSION 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. 5 6 on November 12, 2021, is GRANTED; 2. 7 8 Defendants’ motion to modify the court’s Discovery and Scheduling Order, filed The deadline for filing exhaustion motions is extended from November 24, 2021 to January 24, 2022; 3. 9 All other provisions of the court’s August 24, 2021 Discovery and Scheduling Order remain the same. 10 11 12 13 IT IS SO ORDERED. Dated: November 16, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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