Howell v. Macomber, et al.

Filing 49

ORDER signed by Magistrate Judge Kendall J. Newman on 08/08/17 ordering plaintiff's renewed motion to extend discovery 40 is denied. Plaintiff's motion for reconsideration of the 5/10/17 order 44 is denied. Plaintiff's motion to extend the pretrial motions deadline 46 is granted. The pretrial motions deadline is continued to 10/20/17. Motions shall be briefed in accordance with Local Rule 230(l). (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM J. HOWELL,

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No. 2:16-cv-0441 KJM KJN P

Plaintiff,
v.

ORDER

MACOMBER, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. On April 12, 2017, plaintiff filed

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a request for a third extension of the discovery deadline. On May 10, 2017, plaintiff’s motion

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was denied, but defendants were directed to inform the court whether a video of the 2014 attack

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exists. On May 12, 2017, defendants filed a declaration stating that the litigation coordinator at

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California State Prison, Sacramento, confirmed that no video footage of the incident exists. (ECF

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No. 39-1.) On May 15, 2017, plaintiff filed another request for extension of time to serve

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discovery. (ECF No. 40.) On May 24, 2017, plaintiff filed a motion asking the undersigned to

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reconsider the May 10, 2017 order, and filed a reply to defendants’ response to the court’s order.

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(ECF Nos. 44-45.) On July 20, 2017, plaintiff filed a request to continue the pretrial motions

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deadline. (ECF No. 46.) On July 24, 2017, plaintiff filed a document styled, “Pretrial

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Memorandum.” (ECF No. 47.) Defendants have filed no further responses. As explained more

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fully below, the undersigned declines to further extend the discovery period.
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Background
This action proceeds on plaintiff’s complaint which alleges the following: In August of

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2014, defendant Cannedy approved two chronos for plaintiff: (1) no escorts with inmate Barrett,

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CDC #AF-7863,1 based on Barrett’s August 11, 2014 assault on plaintiff; and (2) no group

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escorts, based on the “high attempted assault rate on” plaintiff. (ECF No. 1 at 10-11.) Plaintiff

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alleges that on October 8, 2014, despite these chronos, as well as plaintiff verbally informing the

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officers at the time of the escort about these chronos, defendants Brady, Iobokwe, and Tran

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ignored plaintiff, and defendants Brady and Iobokwe escorted Barrett, while defendant Tran

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escorted plaintiff with a group of other inmates, out of the treatment center and back to the living

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unit together. (ECF No. 1 at 4.) At the living unit, Barrett “managed to slip out of his handcuffs

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and brutally attack” plaintiff, punching him in the face three times, fracturing his left jaw and

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cutting the inside of his lip. (Id.)

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The initial discovery and scheduling order issued on August 19, 2016. The scheduling

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order provided guidance concerning discovery, and set forth multiple Federal Rules governing

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discovery. (ECF No. 19 at 4-5.) The deadlines in the scheduling order have been extended twice,

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first at the request of plaintiff (ECF No. 25), and then at the request of defendants (ECF No. 35).

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In the latter order, plaintiff was provided the standards for modifying the scheduling order, and

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the parties were cautioned that the undersigned was not inclined to further extend the scheduling

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order deadlines absent substantial good cause. (Id. at 2.)

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Legal Standards
“The district court is given broad discretion in supervising the pretrial phase of litigation.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal

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quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified

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‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

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Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting

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Johnson, 975 F.2d at 607).

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Discussion

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Discovery Deadline

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Plaintiff renews his request to obtain the form 7219 describing inmate Barrett’s medical

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injuries allegedly contained in the incident report from Barrett’s assault on plaintiff, and again

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renews his request for the video of the October 8, 2014 incident.

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As defendants noted in their opposition, plaintiff’s requests for production of documents

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did not include a request for the 7219 form or the alleged video, which defendants have now

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confirmed does not exist. (ECF No. 39.) Just because a camera is in place does not mean that it

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is recording, or that prison officials retained a video recording from 2014. Defendants cannot be

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required to produce something that does not exist. As for the 7219 form, it is unclear from

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defendants’ opposition whether defendants have a copy of Barrett’s 7219 form, but plaintiff did

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not seek the form in his initial discovery request. In any event, plaintiff may call inmate Barrett,

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CDCR #AF7863, as a witness at trial to attest to any such injuries, and plaintiff may testify that

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he saw inmate Barrett sustain injuries during the incident.

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As noted in the May 10, 2017 order, the underlying incidents at issue here took place in

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2014, and plaintiff has been aware since August of 2016 that he needed to propound discovery

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within the court’s deadlines. (ECF No. 19) The scheduling order has twice been extended based

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on requests from both sides. Because plaintiff has again failed to demonstrate good cause or

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diligence, the court denies plaintiff’s renewed request for extension of the discovery deadline, and

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declines to reconsider the May 10 denial of plaintiff’s request to extend the discovery deadline.

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Pretrial Motions Deadline

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On July 20, 2017, plaintiff filed a motion for extension of time to file his “pretrial

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(motion/ memorandum)” because he sent it to the law library for photocopying and it

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“disappeared.” Nevertheless, on July 24, 2017, plaintiff’s 62 page filing styled “Pretrial

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Memorandum,” was filed.

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But plaintiff’s pretrial memorandum does not appear to be a dispositive pretrial motion.

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Rather, it appears to be a partial pretrial statement, and also includes exhibits. To the extent

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plaintiff intended his filing to be a pretrial statement, such filing is premature. But the filing does
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not constitute a dispositive pretrial motion as contemplated in the August 19, 2016 scheduling

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order. Thus, it is now unclear whether plaintiff intended to file a pretrial motion, since he

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specifically requested an extension of time in which to file a pretrial motion. (ECF No. 46.) In

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any event, due to the pendency of his request to extend the discovery period, the court will extend

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the pretrial motions deadline. If no party files a pretrial motion, the court will issue a further

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scheduling order requiring the parties to file pretrial statements. Until such time as the further

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scheduling order issues, plaintiff shall refrain from filing a pretrial statement.

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Therefore, IT IS HEREBY ORDERED that:

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1. Plaintiff’s renewed motion to extend discovery (ECF No. 40) is denied;
2. Plaintiff’s motion for reconsideration of the May 10, 2017 order (ECF No. 44) is

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denied;

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3. Plaintiff’s motion to extend the pretrial motions deadline (ECF No. 46) is granted; and

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4. The pretrial motions deadline is continued to October 20, 2017. Motions shall be

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briefed in accordance with Local Rule 230(l).

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Dated: August 8, 2017

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/howe0441.850

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