Draper v. Rosairo et al

Filing 112

ORDER signed by Judge Kimberly J. Mueller on 11/26/2013 GRANTING in part and DENYING in part plaintiff's 104 Motion to Re-Open Discovery. Parties shall exchange Initial Disclosures within 14 days of date of Order. The new Discovery deadline is 1/31/2014. The Settlement Conference is CONTINUED to 2/6/2014 at 10:00 AM in Courtroom 3 (KJM). Final Pretrial Conference is RE-SET for 3/20/2014 at 3:30 PM in Courtroom 3 (KJM). Parties' Joint Pretrial Statement due 3/6/2014. Trial is SET for 4/21/2014 at 9:00 AM in Courtroom 3 (KJM). (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,

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Civ No. S-10-0032 KJM EFB

Plaintiff,
v.

ORDER

D. ROSARIO, et al.,

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Defendants.

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On November 15, 2013, the court heard argument on defendant’s motion to reopen

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discovery. Victor Meng and Judson Lobdell appeared for plaintiff; David Carrasco appeared

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telephonically for defendant. After considering the parties’ arguments, the court GRANTS the

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motion in part.

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I. BACKGROUND

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On January 5, 2010, plaintiff filed a complaint against defendant Rosario, among

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others, alleging that Rosario had used excessive force against plaintiff. ECF No. 1. Before the

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magistrate judge had screened the case in accordance with 28 U.S.C. § 1915A(a), plaintiff filed

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two motions for discovery. The first sought information about any complaints filed against

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defendant Rosario, while the second sought production of the defendants’ statements and all

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reports from witnesses. See ECF Nos. 7, 11. On August 13, 2010, the magistrate judge denied

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the motions as premature, noting the complaint had not been screened and the defendants had not

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been served. ECF No. 12.
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Thereafter, on October 15, 2010, the magistrate judge found the complaint stated a

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claim against four of the defendants listed, including Rosario. ECF No. 17. Eventually the court

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granted defendants’ motion to dismiss, leaving only the excessive force claim against defendant

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Rosario. ECF Nos. 45, 47. Thereafter on April 26, 2012, plaintiff filed an amended complaint

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containing only the claim against defendant Rosario. ECF No. 49.

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On June 4, 2012, plaintiff filed a request for the production of documents, seeking

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his central and medical files, the name of the officer who stopped Rosario’s actions against

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plaintiff, and depositions of all witnesses. ECF No. 54. On June 18, 2012, the magistrate judge

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ordered the request to be disregarded, informing plaintiff that discovery requests must be served

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on the defendant. ECF No. 55. On the same day the magistrate judge issued a discovery and

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scheduling order, setting a discovery cut-off date of October 6, 2012. ECF No. 56.

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On June 25, 2012, plaintiff filed a request for deposition, seeking to take several

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depositions and also asking for the production of information on any complaints suggesting racial

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prejudice, dishonesty or fabrication of charges filed against defendant Rosario, as well other

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categories of information. ECF No. 59. On June 29, 2012, the court denied the request, again

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reminding plaintiff to serve discovery requests on defendant. ECF No. 60.

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On September 4, 2012, plaintiff filed a “supplemental motion for incorporating

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medical records into deposition records,” which attached copies of plaintiff’s medical records,

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apparently in an attempt to ensure the records were before the court. ECF No. 65.

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On October 3, 2012, plaintiff filed a motion to compel, seeking a DVD of the

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video made on September 9, 2009, after the alleged use of force, copies of his medical records

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from 2008 through 2012, and documents plaintiff had requested on August 4, 2012. ECF No. 66.

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Plaintiff also sought the issuance of writs of habeas corpus ad testificandum for himself and

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witness Richard Shepard. ECF No. 67.

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On November 2, 2012, the court denied the request for the writs as premature and

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denied the motion to compel. ECF No. 71. On November 26, 2012, plaintiff filed a motion for

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reconsideration of the order. ECF No. 74. While this was pending, defendant filed a motion for

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summary judgment. ECF No. 77. Thereafter plaintiff filed motions for a copy of the transcript of
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his deposition and for the appointment of a neutral expert witness. ECF Nos. 79, 81. The

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magistrate judge denied both these motions. ECF Nos. 80, 97.

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On January 17, 2013, this court denied plaintiff’s motion for reconsideration. ECF
No. 83.
On July 30, 2013, the magistrate judge recommended that Rosario’s motion for

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summary judgment be denied. ECF No. 97. This court adopted the findings and

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recommendations on September 24, 2013. ECF No. 99. This court also appointed counsel, set

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the case for a settlement conference on December 12, 2013 and for pretrial conference on

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February 6, 2014. Id.

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In the current motion, plaintiff seeks to establish a new discovery cut-off date of

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March 28, 2014, with the completion of expert discovery by June 18, 2014. He also proposes

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moving the settlement conference to July 2014 and the final pretrial conference to September

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2014. ECF No. 104 at 4.

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II. ANALYSIS

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Because plaintiff seeks to modify the scheduling order, the motion is governed by

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Rule 16(b)(4) of the Federal Rules of Civil Procedure, which provides that modifications may be

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made only on a showing of good cause. Rule 16(b)’s good cause standard focuses primarily on

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the diligence of the moving party and that party’s reasons for seeking modification. C.F. ex rel.

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Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011), cert. denied sub nom

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C.F. v. Corbett, 132 S.Ct. 1566 (2012). If the moving party was not diligent, “the inquiry should

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end” and the motion to modify should not be granted. Zivkovic v. S. Cal. Edison Co., 302 F.3d

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1080, 1087 (9th Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir. 1992)).

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To demonstrate diligence under Rule 16, the movant may be required to show:

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(1) that he was diligent in assisting the court in creating a workable Rule 16 order; (2) that his

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noncompliance with a Rule 16 deadline is occurring, notwithstanding his diligent efforts to

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comply, because of the development of matters that could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference; and (3) that he was diligent in
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seeking amendment of the Rule 16 order, once it became apparent that he could not comply with

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the order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (internal citations

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omitted).

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Plaintiff’s attorneys explain that discovery was closed by the time they were

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appointed, yet crucial discovery has not been undertaken. He seeks to depose defendant Rosario

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and some unidentified medical personnel, to obtain a copy of any other complaints of excessive

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force made against Rosario as well as Rosario’s disciplinary file, to inspect the site of the

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incident, and to retain expert witnesses. ECF No. 104 at 5-6. In another section of his

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memorandum of points and authorities, plaintiff suggests he also wishes to depose other

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witnesses to the incident. ECF No. 104 at 8. Finally, at hearing, he said he needed CDCR’s use

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of force guidelines, among other things.

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Defendant’s counsel agreed to contact the institution where plaintiff is currently
housed in order to facilitate counsels’ review of plaintiff’s central and medical files.
Generally, “[t]he arrival of new counsel . . . . does not entitle parties to conduct

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additional discovery or otherwise set aside valid and binding orders of the court, regardless of the

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efficacy of any new strategy counsel seeks to follow.” Alvarado Orthopedic Research, L.P. v.

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Linvatec Corp., Civil No. 11cv0246 IEG (RBB), 2012 WL 6193834, at *2 (S.D. Cal. Dec. 12,

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2012) (internal citations, quotations omitted; alteration in original); Porter v. Cal. Dep’t of Corr.,

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No. Civ.S-00-978 FCD/JFM, 2006 WL 467980, at *1 (E.D. Cal. Jan. 6, 2006). This rule is

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sometimes relaxed when, as here, pro bono counsel have agreed to represent pro se plaintiffs after

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the discovery deadlines have closed. See, e.g., Woodard v. City of Menlo Park, No. C-09-3331

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SBA, 2012 WL 2119278, at *1 (N.D. Cal. June 11, 2012); Henderson v. Peterson, No. C-07-2838

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SBA PR, 2011 WL 441206, at *2 (N.D. Cal. Feb. 3, 2011). The court does not agree with

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plaintiff’s characterization that Rosario stonewalled him, see ECF No. 104 at 3, and notes that

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many of the attempts at discovery that counsel characterizes as diligent were procedurally

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improper. See id. at 4. Even so, the court agrees that allowing some additional discovery is

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appropriate under the circumstances. For example, despite defendant’s argument that the material

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in his personnel file is private and irrelevant, courts have found requests for other complaints of
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excessive force against a defendant officer to be relevant. See Zackery v. Stockton Police Dep’t,

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No. CIV S-05-2315 MCE DAD P, 2007 WL 1655634, at *2 (E.D. Cal. June 7, 2007). In

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addition, allowing plaintiff to depose Rosario and the officer who attempted to stop Rosario’s use

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of force would serve the ultimate resolution of this case on the merits.

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Plaintiff has not suggested, however, why a review of the medical records would

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not serve to inform him about any medical issues in this case or how a deposition of a doctor or

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other medical staff member, four years after the incident, would be useful. Similarly, counsel has

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not yet examined plaintiff’s medical records and so cannot explain why he needs an expert

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witness or indeed what other experts he may need.

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Accordingly, the court finds plaintiff has shown good cause for a limited

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reopening of discovery. It also finds that the ultimate resolution of this case will be aided if the

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parties now make the initial disclosures required by Federal Rule of Civil Procedure 26, from

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which this case was previously exempt. Initial disclosures by defendant should include CDCR’s

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use of force policy.

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IT IS THEREFORE ORDERED that:

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1. Plaintiff’s motion to reopen discovery, ECF No. 104, is granted in part;

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2. The parties shall exchange initial disclosures within fourteen days of the date of

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this order;

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3. Counsel for defendant Rosario shall provide a copy of Rosario’s personnel file

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and/or any other complaints of excessive force lodged against him under seal directly to the

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undersigned’s chambers within fourteen days of the date of this order for in camera review;

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4. Plaintiff is permitted to depose defendant Rosario and the other officer who
allegedly attempted to stop Rosario’s use of force;

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5. The new discovery deadline is January 31, 2014; by this date any motions to
compel discovery should be heard by the magistrate judge;

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6. The settlement conference set for December 12, 2013 is vacated and a new

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settlement conference is reset for February 6, 2014 at 10:00 a.m. in Courtroom 27;

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/////
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7. The final pretrial conference set for February 6, 2014 is vacated and is reset for

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March 20, 2014 at 3:30 p.m. in Courtroom 3; the parties’ joint pretrial statement is due March 6,

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2014; and

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8. Trial is set for April 21, 2014 in Courtroom 3 at 9:00 a.m.
DATED: November 26, 2013.

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UNITED STATES DISTRICT JUDGE

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