Hill v. Director of Corrections et al

Filing 42

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/7/14 ORDERING that Plaintiffs motion to amend (ECF No. 36 ) is denied and the Clerk of the Court shall strike the proposed amended complaint (ECF No. 37 ) from the docket. Defendants motion for plaintiffs compliance and amendment thereto (ECF Nos. 40 , 41 ) is granted. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH HILL,

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No. 2:11-cv-3409-EFB P
Plaintiff,

v.

ORDER

DIRECTOR OF CORRECTIONS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He moves to amend the complaint and defendants move for enforcement of the

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court’s October 11, 2013 order. As stated below, plaintiff’s motion is denied and defendants’

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motion is granted.

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I. Plaintiff’s Motion to Amend (ECF No. 36)

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Plaintiff’s October 24, 2013 motion to amend appears to be based on his

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misunderstanding of the court’s September 24, 2012 screening order. It is also untimely under

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the court’s scheduling order. ECF No. 13. For these reasons, the motion is denied.

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On September 24, 2012, the court screened plaintiff’s original complaint pursuant to 28

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U.S.C. § 1915A. ECF No. 6. It found that the complaint stated a cognizable Eighth Amendment

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deliberate indifference to medical needs claim against defendants Menon, Bal, and Duc. It also

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found that the complaint did not state cognizable claims against defendants U.C. Davis, Walker,
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and the Director of Corrections, and dismissed those defendants with leave to amend. The court

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gave plaintiff the choice of amending his complaint or proceeding with the claims in the original

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complaint against defendants Menon, Bal, and Duc. Id. at 4. On October 29, 2012, plaintiff

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submitted documents with the court indicating his desire to proceed with the claims in the original

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complaint against defendants Menon, Bal, and Duc. ECF No. 9. On January 22, 2013,

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defendants Menon, Bal, and Duc filed an answer. ECF No. 12.

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Now, over a year after presenting plaintiff with the option of amending his complaint or

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proceeding with his claims against defendants Menon, Bal, and Duc, plaintiff requests leave to

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amend. ECF No. 36. Plaintiff states in his request that he “is complying” with the court’s

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September 24, 2012 screening order, and believes that this court “has ordered him to file an

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amended complaint without any claims against U.C. Davis, Walker, or the Director of

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Corrections.” Id. at 1. Plaintiff is mistaken. On September 24, 2012, the court gave plaintiff the

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choice of amending his complaint or proceeding on the original complaint as narrowed by the

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court’s screening order. The court made clear that plaintiff was “not obligated to amend his

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complaint.” ECF No. 6 at 4. Because plaintiff’s motion is based on his erroneous belief that he

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was required to amend his complaint, his motion is denied.

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Moreover, the deadline for filing a motion to amend was April 23, 2013. See ECF No. 13.

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A scheduling order may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good

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cause exists when the moving party demonstrates he cannot meet the deadline despite exercising

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due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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Plaintiff fails to demonstrate that good cause supports his implied request to modify the schedule.

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On this basis too, plaintiff’s motion is denied.

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II. Defendants’ Motion for Plaintiff’s Compliance with Court Order (ECF No. 40)

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Defendants move for plaintiff to comply with the court’s October 11, 2013 order, which

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directed plaintiff to, within 21 days, (1) serve defendants with a signed verification that his

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interrogatory responses, dated April 23, 2013, were made under oath; (2) serve defendants with

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further responses to Special Interrogatories, Nos. 7 and 8; and (3) serve signed written responses

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to defendants’ Request for Production of Documents. ECF Nos. 34, 40. Defendants state that
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plaintiff did not serve the signed verification or the further responses to the Special

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Interrogatories. ECF No. 40-1 at ¶¶ 2-7. Defendants note that plaintiff did serve written

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responses to their Request for Production of Documents, but note that the responses were signed

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before the court issued its October 10, 2013 order. Id. Thus, it is unclear whether plaintiff

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actually made any attempt to comply with the court’s order. Plaintiff has not opposed or

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otherwise responded to defendants’ motion.

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It is apparent that plaintiff has failed to comply with the court’s order. Plaintiff shall

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comply or risk sanctions, including the sanction of dismissal. A party’s failure to comply with

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any order or with the Local Rules “may be grounds for imposition of any and all sanctions

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authorized by statute or Rule or within the inherent power of the Court.” Local Rule 110. The

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court may recommend that an action be dismissed with or without prejudice, as appropriate, if a

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party disobeys an order or the Local Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir.

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1992) (district court did not abuse discretion in dismissing pro se plaintiff’s complaint for failing

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to obey an order to re-file an amended complaint to comply with Federal Rules of Civil

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Procedure); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for pro se

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plaintiff’s failure to comply with local rule regarding notice of change of address affirmed).

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Lastly, defendants request an extension of the deadline for filing dispositive motions

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because of plaintiff’s failure to fully comply with discovery. Good cause appearing, the

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dispositive motion deadline is extended to June 9, 2014.

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend (ECF No. 36) is denied and the Clerk of the Court shall

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strike the proposed amended complaint (ECF No. 37) from the docket.

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2. Defendants’ motion for plaintiff’s compliance and amendment thereto (ECF Nos. 40,

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41) is granted.

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3. Plaintiff shall, within 21 days, (1) serve defendants with a signed verification that his

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interrogatory responses, dated April 23, 2013, were made under oath; and (2) serve

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defendants with further responses to Special Interrogatories, Nos. 7 and 8. Failure to

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comply with this order may result in a recommendation that this action be dismissed.

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4. Good cause appearing, the dispositive motion deadline is extended to June 9, 2014.
DATED: April 7, 2014.

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