Calhoun v. Gomez et al

Filing 118

ORDER signed by Magistrate Judge Deborah Barnes on 10/7/2016 GRANTING plaintiff's 117 motion to modify the scheduling order. The dates set out in the 6/20/2016 scheduling order are extended as follows: all requests for discovery shall be served no later than 11/4/2016; discovery due by 12/31/2016; any motion to amend must be filed no later than 12/31/2016; and dispositive motions shall be filed by 3/31/2017. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMONT L. CALHOUN,

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No. 2:12-cv-2856 GEB DB P

Plaintiff,
v.

ORDER

M. GOMEZ, et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff is proceeding on Eighth Amendment claims against

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defendants Green, Gomez, and Young in his amended complaint filed April 22, 2013. In May

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2014, defendants Gomez and Young filed an answer to the amended complaint. On September 9,

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2015, the court set an October 30, 2015 deadline for the parties to serve requests for discovery.

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(ECF No. 78.) However, that deadline, and others set out in the September 2015 scheduling

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order, was extended to August 19, 2016 after defendant Green answered the amended complaint

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in June. (See June 20, 2016 Scheduling Order, ECF No. 112.)

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In a motion dated August 28, 2016, and filed here on August 31, plaintiff appears to seek

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an extension of the deadline to serve discovery requests. Plaintiff’s motion is entitled “Plaintiff

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Seeks Leave to Modify Scheduling Order to Extend Cut Off Date.” (ECF No. 117.) Plaintiff

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does not specify which date in the scheduling order he seeks to extend. He states that August 28
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is the cut-off date. However, none of the dates set out in the June 20, 2016 scheduling order are

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August 28. The court assumes plaintiff is seeking to extend the August 19, 2016 deadline to

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serve discovery requests. Defendants filed no opposition to plaintiff’s motion.

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Federal Rule of Civil Procedure 16(b)(4) allows the court to modify its scheduling order

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for good cause. The “good cause” standard focuses primarily on the diligence of the party seeking

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

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“[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of

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relief.” Id. “Although the existence or degree of prejudice to the party opposing the modification

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might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving

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party's reasons for seeking modification.” Id.

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Plaintiff states that he has been diligent but has had very limited access to the law library.

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He also complains about the “theft and destruction” of his legal materials. While plaintiff fails to

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show what discovery he has been unable to conduct in the time given, the court finds plaintiff has

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made a minimal showing of good cause.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s August 31, 2016 motion to

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modify the scheduling order (ECF No. 117) is granted. The dates set out in the court’s June 20,

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2016 scheduling order are extended as follows:

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1. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 shall be served

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not later than November 4, 2016.

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2. The parties may conduct discovery until December 31, 2016. Any motions necessary

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to compel discovery shall be filed by that date.

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3. If plaintiff seeks leave to amend the complaint, he must file any motion to amend no

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later than December 31, 2016.

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4. Dispositive motions shall be filed on or before March 31, 2017. Motions shall be

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briefed in accordance with paragraph 8 of the order filed December 17, 2013 and

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Local Rule 230(l).

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Dated: October 7, 2016

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DLB:9
DLB1/prisoner-civil rights/calh2856.so eot

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