Gomez v. CDCR et al

Filing 70

ORDER signed by Magistrate Judge Kendall J. Newman on 7/10/20 VACATING 68 Findings and Recommendations and GRANTING IN PART AND DENYING IN PART 69 Motion to Modify the Scheduling Order. Plaintiffs request for an extension of time to file a dispositive motion is DENIED; plaintiff is granted forty-five days from the date of this order to file a pretrial statement. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD GOMEZ,

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No. 2: 17-cv-1247 JAM KJN P

Plaintiff,
v.

ORDER

CDCR, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. By order filed February 28, 2020, the undersigned directed plaintiff to file a

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pretrial statement on or before May 16, 2020. (ECF No. 66.) Plaintiff did not file a pretrial

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statement. Accordingly, on May 27, 2020, the undersigned recommended that this action be

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dismissed. (ECF No. 68.)

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In response to the findings and recommendations, on June 12, 2020, plaintiff filed a
motion to modify the scheduling order. (ECF No. 69.) Defendant has not opposed this request.
Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and

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with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily

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considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot

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reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was
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not diligent, the inquiry should end. Id.

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In the motion to modify the scheduling order, plaintiff alleges that he believed that the

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courts were “all on hold” for 30 days, except for essential cases. Plaintiff also alleges that due to

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the COVID 19 crisis, prisoners are not allowed to leave the unit and do not have physical access

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to the law library. Plaintiff also alleges that prisoners do not have any “ADA” workers to assist

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with writing. Plaintiff alleges that he has been diligent in this action. Plaintiff requests a thirty

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days extension of time to file a dispositive motion.
To put plaintiff’s motion to modify the scheduling order in context, the undersigned

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observes that on August 2, 2019, he issued a scheduling order setting February 14, 2020, as the

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deadline for filing dispositive motions. (ECF No. 56.) Neither party filed a dispositive motion on

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or before February 14, 2020. Accordingly, on February 28, 2020, the undersigned issued a

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further scheduling order, setting the pretrial conference and jury trial. (ECF No. 66.) In this

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order, the undersigned directed plaintiff to file his pretrial statement on or before May 16, 2020.

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(Id.)

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In the pending motion, plaintiff does not discuss when his inability to access to the law

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library and ADA workers began. Plaintiff also does not allege when he came to believe that the

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courts were on hold for 30 days, except for essential cases. While these conditions may have

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prevented plaintiff from filing a timely pretrial statement, plaintiff has not demonstrated how

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these conditions prevented him from filing a timely dispositive motion on or before the February

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14, 2020 deadline. Accordingly, the undersigned finds that plaintiff has not shown good cause to

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modify the scheduling order to grant him an extension of time to file a dispositive motion.

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However, the undersigned finds that plaintiff has shown good cause to vacate the pending
findings and recommendations and grant him an extension of time to file a pretrial statement.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The May 27, 2020 findings and recommendations (ECF No. 68) are vacated;

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2. Plaintiff’s motion to modify the scheduling order (ECF No. 69) is granted in part and

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denied in part; plaintiff’s request for an extension of time to file a dispositive motion is

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denied; plaintiff is granted forty-five days from the date of this order to file a pretrial
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statement; failure to file a pretrial statement within that time will result in a

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recommendation of dismissal of this action.

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Dated: July 10, 2020

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