Moore v. McDonald

Filing 68

ORDER signed by Magistrate Judge Kendall J. Newman on 4/17/13 ORDERING that within 14 days of the date of this order, plaintiff shall inform the court whether he is seeking to re-open discovery if he is allowed to amend his complaint to include a request for money damages. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO K. MOORE,

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Plaintiff,
vs.
MICHAEL McDONALD, et al.,
Defendants.

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No. 2: 10-cv-3457 KJM KJN P

ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is defendant’s motion to modify the

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scheduling order to file a summary judgment motion past the filing deadline. For the following

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reasons, further briefing is ordered.

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Legal Standard

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Under Federal Rule of Civil Procedure Rule 16(b), a scheduling order “may be

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modified only for good cause and with the judge’s consent.” “Rule 16(b)’s ‘good cause’

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standard primarily considers the diligence of the party seeking the amendment.” Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the moving party is unable to

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reasonably meet a deadline despite acting diligently, the scheduling order may be modified. Id.

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If, however, the moving party “‘was not diligent, the inquiry should end’ and the motion to
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modify should not be granted.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080,

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1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 609).

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Discussion

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This action is proceeding on the original complaint filed December 27, 2010. The

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only defendant is Michael McDonald, the Warden at High Desert State Prison (“HDSP”).

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Plaintiff alleges that he received inadequate medical care for his diabetes. In the complaint,

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plaintiff seeks injunctive relief only. In particular, plaintiff requests that he be transferred to

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either San Quentin or “Vacaville State Prison.”

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On November 26, 2012, the court issued a further scheduling order. The pretrial

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conference was set for February 15, 2013. The jury trial is set for June 17, 2013 before the

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Honorable Kimberly J. Mueller.

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On January 14, 2013, plaintiff filed his pretrial statement. On February 8, 2013,

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defendant filed his pretrial statement. On February 22, 2013, plaintiff filed a letter with the court

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stating that he wished to seek money damages in this action.

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On March 1, 2013, defendant filed a summary judgment motion and the pending

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motion to modify the scheduling order to allow for the filing of the summary judgment motion.

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In the motion to modify, defendant states that plaintiff is now housed at R. J. Donovan

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Correctional Facility (“RJDCF”). Defendant argues that he should be allowed to argue that

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plaintiff’s claim for injunctive relief is now moot. Defendant also argues that he should be

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allowed to address plaintiff’s request for damages. Regarding plaintiff’s request for damages, in

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the proposed summary judgment motion, defendant argues that as the Warden, he was not

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involved in the alleged inadequate medical care. Defendant also argues that plaintiff was not

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injured as a result of the alleged delay in his receipt of insulin shots.

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In the motion to modify, defendant states that on October 24, 2012, plaintiff filed

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a notice of change of address reflecting his transfer to RJDCF. Defendant states that he only had

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two weeks to file a timely summary judgment motion following his receipt of the notice of
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change of address.

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In his opposition to defendant’s motion to modify the scheduling order, plaintiff

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argues that he did not receive the injunctive relief requested, i.e., a transfer to either San Quentin

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or the California Medical Facility.

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When a prisoner is transferred from a prison, claims for injunctive relief arising

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from conditions at the former prison become moot. See Nelson v. Heiss, 271 F.3d 891, 897 (9th

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Cir. 2001) (citing Dilley v. Gunn, 64 F.3d 1365, 1368–69 (9th Cir. 1995)). While plaintiff

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alleges that he did not receive the requested injunctive relief, i.e., a transfer to San Quentin or

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“Vacaville State Prison,” plaintiff now is housed at RJDCF. The court has no authority to order

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prison officials at RJDCF to transfer plaintiff to a different prison as there are no defendants at

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RJDCF. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) (this court is

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unable to issue an order against individuals who are not parties to a suit pending before it).1 For

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these reasons, the court would agree with defendant that plaintiff’s request for injunctive relief

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should be dismissed.

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Defendant could have raised the issue of mootness regarding plaintiff’s request for

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injunctive relief sooner. However, defendant was sufficiently diligent in filing his motion to

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modify the scheduling order. For this reason, defendant’s motion to modify the scheduling order

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to file a summary judgment motion addressing plaintiff’s request for injunctive relief is granted.

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Further briefing is required regarding plaintiff’s request to amend his complaint to

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include a request for money damages.2 Plaintiff does not indicate whether he is seeking to

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reopen discovery if his request to seek damages is granted. If plaintiff is seeking to re-open

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Prisoners have no constitutional right to be housed at any particular institution. See
Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983). Assuming there were defendants who could
respond to plaintiff’s request for injunctive relief, the issue would be whether plaintiff was
receiving adequate medical care at RJDCF.
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By addressing plaintiff’s request for damages in the proposed summary judgment
motion, defendant indicates a non-opposition to plaintiff’s request to amend his complaint to
include this request.
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discovery, the court is inclined to deny his request to amend his complaint. If plaintiff does not

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seek to conduct discovery, the court is inclined to grant plaintiff’s motion to amend and to allow

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defendant to proceed with his summary judgment motion as to the request for damages.

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Accordingly, IT IS HEREBY ORDERED that within fourteen days of the date of

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this order, plaintiff shall inform the court whether he is seeking to re-open discovery if he is

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allowed to amend his complaint to include a request for money damages.

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DATED: April 17, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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