(PC) Schessler v. Kostecky et al

Filing 42

ORDER GRANTING 41 Defendant's Ex Parte Application to Modify the Deadlines to File (1) A Reply in Support of Defendant's Motion for Summary Judgment; (2) An Opposition to Plaintiff's Cross-Motion for Summary Judgment signed by Magistrate Judge Barbara A. McAuliffe on 10/23/2024. Deadline: 12/6/2024. (Lawrence, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JOSEPH SCHESSLER,

12

Plaintiff,

13
14

v.
BASS,

15

Defendant.

Case No. 1:23-cv-01012-BAM (PC)
ORDER GRANTING DEFENDANT’S EX
PARTE APPLICATION TO MODIFY THE
DEADLINES TO FILE (1) A REPLY IN
SUPPORT OF DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT; (2) AN
OPPOSITION TO PLAINTIFF’S CROSSMOTION FOR SUMMARY JUDGMENT

16

(ECF No. 41)

17

Opposition and Reply Deadlines: December
6, 2024

18

Plaintiff Joseph Schessler (“Plaintiff”) is a state prisoner proceeding pro se in this civil

19
20

rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Bass

21

(“Defendant”) for retaliation and denial of free exercise of religion in violation of the First

22

Amendment, and for violation of the Bane Act, California Civil Code 52.1. All parties have

23

consented to United States Magistrate Judge jurisdiction. (ECF Nos. 6, 11.)
On September 16, 2024, Defendant filed a motion for summary judgment on the grounds

24
25

that there is no genuine issue of material fact that Plaintiff’s First Amendment rights were

26

violated, Plaintiff’s free exercise claim is meritless, and Defendant is entitled to qualified

27

///

28

///
1

1

immunity. (ECF No. 36.) Following the filing of Plaintiff’s opposition papers, Defendant’s reply

2

brief is currently due on or before October 22, 2024.1 (ECF Nos. 38, 39.)

3

On October 16, 2024, Plaintiff filed a cross-motion for summary judgment. (ECF No.

4

40.) Defendant’s opposition or statement of non-opposition is due on or before November 6,

5

2024.

6

Currently before the Court is Defendant’s ex parte application to modify the deadlines to

7

file a reply in support of Defendant’s motion for summary judgment and to file an opposition to

8

Plaintiff’s motion for summary judgment. (ECF No. 41.) Although Plaintiff has not had an

9

opportunity to respond to Defendant’s request, the Court finds a response unnecessary. The

10

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

11

Defendant argues that good cause exists for the requested extensions of time because

12

Plaintiff’s motion for summary judgment introduces new issues requiring further consideration,

13

and additional time is required to ensure that Defendant’s responses are consistent between the

14

reply in support of Defendant’s motion for summary judgment and the opposition to Plaintiff’s

15

cross-motion. (ECF No. 41.) Defendant plans to supplement evidence presented in Defendant’s

16

motion for summary judgment, and obtain additional evidence to address Plaintiff’s arguments.

17

In addition, defense counsel has been battling the flu and has taken sick leave, leaving counsel

18

unable to fully commit to the demands of this case. Defense counsel’s availability is also limited

19

due to several time conflicts and the commitments in other cases. As this is Defendant’s first

20

request, Defendant does not believe this delay will prejudice Plaintiff. Defendant requests that

21

both the reply and opposition deadlines be extended to December 6, 2024. (Id.)

22

Having considered the request, the Court finds it appropriate to modify the briefing

23

schedule in this matter. Fed. R. Civ. P. 6(b). The Court further finds that Plaintiff will not be

24

prejudiced by the brief extension requested here.

25

///

26
The Court notes that although the docket reflects a filing date of October 7, 2024, the deadline for Defendant’s reply
brief did not begin to run until October 8, 2024, the date Plaintiff’s opposition papers were actually entered on the
docket. (ECF Nos. 38, 39); Local Rule 230(l) (providing that a reply to a motion in a prisoner action may be filed
“not more than fourteen (14) days after the opposition has been filed in CM/ECF”).
1

27
28

2

1
2
3

Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendant’s ex parte application to modify the deadlines, (ECF No. 41), is GRANTED, as
follows:
a. Defendant’s reply to Plaintiff’s opposition to Defendant’s motion for summary

4
5

judgment is due on or before December 6, 2024;
b. Defendant’s opposition to Plaintiff’s cross-motion for summary judgment is due

6
7
8
9

on or before December 6, 2024; and
2. Plaintiff’s reply in support of his cross-motion for summary judgment, if any, is due
within fourteen (14) days from the date of filing of Defendant’s opposition.

10
11
12
13

IT IS SO ORDERED.
Dated:

/s/ Barbara

October 23, 2024

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3