McMillan v. Pfile, et al.

Filing 179

ORDER signed by Chief District Judge Kimberly J. Mueller on 3/11/2022 DENYING 178 Ex Parte Application. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Edwin McMillan,

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No. 2:13-cv-00578-KJM-KJN
Plaintiff,

ORDER

v.
S. Ringler, et al.,

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Defendants.

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Defendants Ringler, Scotland, and Zuniga apply ex parte for leave to contend that plaintiff

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Edwin McMillan did not exhaust his administrative remedies before filing this action, as required

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by the Prison Litigation Reform Act (PLRA). See Ex Parte App., ECF No. 178; 42 U.S.C.

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§ 1997e(a).

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A defendant bears the burden to both plead and prove that a plaintiff has not exhausted

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administrative remedies under the PLRA. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino v.

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Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). The defendants did not assert in their

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answer that Mr. McMillan did not exhaust his administrative remedies. See generally Answer,

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ECF No. 66. As they acknowledge, they could only assert this defense now if they amended their

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answer. See Ex Parte App. at 7. In addition, the deadline for dispositive pretrial motions passed

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long ago. See Discovery and Scheduling Order, ECF No. 71. Before the defendants could move

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for summary judgment based on an administrative exhaustion defense, the scheduling order
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would need to be amended, both to permit them to amend their answer and to allow further

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pretrial motion practice. See, e.g., Seattle Pac. Indus., Inc. v. S3 Holding LLC, 831 F. App’x 814,

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816 (9th Cir. 2020) (unpublished); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608

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(9th Cir. 1992).

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A pretrial scheduling order may be modified if a party, despite its diligence, cannot

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reasonably be expected to meet that order’s deadlines. Johnson, 975 F.2d at 609. When litigants

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request changes to the scheduling order, the court’s inquiry focuses on their attempts to comply;

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they must demonstrate their “diligence.” See, e.g., id. at 609; Jackson v. Laureate, Inc., 186

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F.R.D. 605, 607–08 (E.D. Cal. 1999). Motions are more often granted when the opposing party’s

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actions caused delay or when the need to amend arises from some unexpected or outside source.

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See, e.g., Hood v. Hartford Life and Acc. Ins. Co., 567 F. Supp. 2d 1221, 1225–26 (E.D. Cal.

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2008). The defendants here do not attribute their need for an amendment to an outside cause;

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they cite a likely oversight by their previously assigned attorneys. See Ex Parte App. at 5–6. The

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court cannot conclude on this record that the defendants were diligent in pursuing their proposed

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administrative exhaustion defense. See, e.g., Johnson v. Merck & Co., No. 20-00138, 2022 WL

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229860, at *3 (E.D. Cal. Jan. 26, 2022) (denying motion to amend scheduling order to correct

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alleged errors by previously assigned counsel); Fed. Deposit Ins. Corp. v. Ching, No. 13-1710,

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2016 WL 1756913, at *3 (E.D. Cal. May 3, 2016) (denying motion to amend scheduling order

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based on claims of “confusion” about “the effect of the court’s previous orders”).

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The court acknowledges defense counsel’s efforts to meet and confer soon after they came

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to the conclusion that they had not asserted a potentially viable defense, to then quickly seek

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relief, and to explain the reasons behind their request clearly and candidly. That action, however,

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has come too late. Mr. McMillan filed his original complaint almost a decade ago. The court

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recently appointed counsel to represent him at trial and held a final pretrial conference. See Am.

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Mins., ECF No. 174. A trial will begin in about two months. See Min. Order, ECF No. 175.

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That trial date could be postponed at the defendants’ request “only to prevent manifest injustice.”

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Fed. R. Civ. P. 16(e). Rather than preventing manifest injustice, adding a new affirmative

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defense to the case now would likely cause manifest injustice to Mr. McMillan.
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The ex parte application (ECF No. 178) is denied.

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IT IS SO ORDERED.

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DATED: March 11, 2022.

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