Bumpus v. Nangalama, et al

Filing 59

ORDER signed by Magistrate Judge Deborah Barnes on 9/14/17, DENYING the parties' 58 joint stipulation. (Kastilahn, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PATRICK BUMPUS, 11 Plaintiff, ORDER 12 13 No. 2:12-cv-1102 GEB DB P v. A. NANGALAMA, et al., 14 Defendants. 15 Plaintiff is a state prisoner proceeding with counsel in this civil rights action pursuant to 16 17 42 U.S.C. § 1983. This action proceeds on plaintiff’s original complaint on an Eighth 18 Amendment medical indifference claim against defendants Dr. Nangalama, Dr. Dhillon, Dr. 19 Sahota, LVN Cox, LVN Teachow, and A. Deem. Pending before the court is the parties’ joint 20 stipulation to modify the pretrial scheduling order. (ECF No. 58.) For the reasons set forth below, 21 this request will be denied. 22 A. 23 Procedural History Before turning to the parties’ request, the court finds it necessary to briefly review the 24 procedural history of this case. Plaintiff initiated this action several years ago on April 25, 2012. 25 Following resolution of the defendants’ motion to dismiss, a discovery and scheduling order 26 (“DSO”) issued on February 20, 2014, setting the discovery deadline for June 13, 2014, and the 27 dispositive motion deadline for September 5, 2014. (ECF No. 35.) The DSO was then extended 28 by six months on May 2, 2014, on request of the defendants. (ECF No. 39.) The discovery 1 1 deadline was continued to December 15, 2014, and the dispositive motion deadline was continued 2 to March 5, 2015. 3 During this open discovery period, plaintiff filed multiple requests for appointment of 4 counsel. His final request was granted on September 15, 2015, and counsel was ultimately 5 appointed on April 4, 2017. In light of this recent appointment, the DSO was modified once again 6 on April 13, 2017. (ECF No. 56.) The current discovery deadline is October 4, 2017, and the 7 dispositive motion deadline is December 8, 2017. 8 B. 9 Legal Standards Once a scheduling order has been filed pursuant to Federal Rule of Civil Procedure 16, the 10 “schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 11 16(b)(4). “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party 12 seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 13 1992). If the moving party fails to demonstrate diligence, “the inquiry should end.” Id. For 14 example, good cause may be found where the moving party shows it assisted the court with 15 creating a workable scheduling order, that it is unable to comply with the scheduling order’s 16 deadlines due to matters not reasonably foreseeable at the time the scheduling order issued, and 17 that it was diligent in seeking a modification once it became apparent it could not comply with the 18 scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations 19 omitted). 20 C. 21 Discussion It is evident from the foregoing that the discovery period in this case has been lengthy: an 22 initial 10-month period when plaintiff was proceeding in pro per followed by a 6-month period 23 after the appointment of counsel. Despite the fact that this latter 6-month discovery period was 24 ordered precisely because of plaintiff’s counsel’s appointment, the parties again cite to counsel’s 25 “recent” appearance as one of the primary reasons for yet another 6-month modification of the 26 DSO. They also cite to the “recent appearance[]” of defense counsel, who substituted in as 27 counsel of record on July 25, 2017, “scheduling issues, the challenges accompanying Plaintiff’s 28 incarceration, and the substantial number of defendants….” J. Stip. ¶ 3. 2 1 On review, the court does not find good cause to modify the DSO by another 6-month 2 period. Not only do the parties fail to specify any “scheduling issues” that would warrant an 3 extension, they also fail to identify any challenges they have faced conducting discovery as a 4 result of plaintiff’s incarceration. In fact, there is no discussion at all regarding discovery efforts 5 thus far. Additionally, the undersigned finds that the appearance of six defendants does not 6 qualify as a “substantial” number so as to justify a third modification of the DSO. The parties’ 7 joint stipulation to modify the DSO will therefore be denied for lack of good cause. 8 D. 9 Conclusion Accordingly, IT IS HEREBY ORDERED that the parties’ joint stipulation (ECF No. 58) 10 is DENIED. 11 Dated: September 14, 2017 12 13 14 15 /DLB7; DB/Inbox/Substantive/bump1102.41dso.3 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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