Evans v. Horn, et al

Filing 121

ORDER denying Plaintiff's Motion for Discovery 111 , Ex Parte Application to Vacate the Motion Filing Date 117 , and Application for Service of Process 115 . The Court grants in part Plaintiff's Application for Enlargement of Time to Fil e an Opposition to dft's Motion for Summary Judgment 119 ; Evans may file any opposition by 5/5/09. Dfts to reply by 5/22/09. The hearing on Defendants' Motion for Summary Judgment is reset for June 1, 2009, at 10:00 a.m. The pretrial conf erence date of May 1, 2009, and trial date of June 1, 2009, currently set on Judge Millers calendar are vacated. The mandatory settlement conference is reset for September 2, 2009, at 8:30 a.m. Signed by Magistrate Judge Ruben B. Brooks on 4/2/09. (All non-registered users served via U.S. Mail Service).(tkl) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERRY DON EVANS, ) ) ) Plaintiff, ) v. ) ) COUNTY OF SAN DIEGO; WILLIAM B. ) KOLENDER, Sheriff; DR. EARL ) ) GOLDSTEIN, County Sheriff's Medical Director; BRUCE LEICHT, ) Medical Administrator, ) ) Defendants. ) ) Civil No. 06cv877 JM(RBB) ORDER DENYING PLAINTIFF'S MOTION FOR DISCOVERY [DOC. NO. 111], APPLICATION FOR SERVICE OF PROCESS [DOC. NO. 115], EX PARTE APPLICATION TO VACATE THE MOTION FILING DATE [DOC. NO. 117], AND GRANTING IN PART PLAINTIFF's APPLICATION FOR ENLARGEMENT OF TIME TO FILE OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. NO. 119] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on April 13, 2006 [doc. no. 1]. On September 1, 2006, Evans

filed an Amended Complaint [doc. no. 11] naming John/Jane Doe #6, Chief Medical Executive as a defendant, and on January 8, 2007, he filed a Second Amended Complaint [doc. no. 18] naming John/Jane Doe #1, Chief Medical Officer as a defendant. On September 11, 2008,

Evans filed a Declaration for Entry of Default against Defendant John/Jane Doe #1, Chief Medical Officer [doc. no. 70], and on September 15, 2008, Dr. Earl Goldstein filed an Answer to 1
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Plaintiff's Second Amended Complaint [doc. no. 69].

Evans also

submitted a Declaration for Entry of Default against Bruce Leicht, Medical Administrator [doc. no. 74], which was filed nunc pro tunc to September 23, 2008. Bruce Leicht filed an Answer to Plaintiff's On

Second Amended Complaint on October 2, 2008 [doc. no. 75].

January 8, 2009, the Court denied Plaintiff's requests for default against Defendants Leicht and Goldstein and granted Evans leave to file a third amended complaint [doc. no. 103]. His Third Amended

Complaint naming Defendants Leicht and Goldstein was filed nunc pro tunc to January 27, 2009, [doc. no. 108]. On February 19, 2009, Plaintiff's Motion for Discovery was filed; Evans requests that the Court reopen or enlarge the time for discovery in light of his Third Amended Complaint [doc. no. 111]. Defendants filed an Opposition to Plaintiff's Motion for Extension of Discovery Cutoffs [doc. no. 118]. Evans's Application for Service of Process - Summons and Third Amended Complaint was filed nunc pro tunc to February 19, 2009, it requests that the Court direct the U.S. Marshals Service to complete serve of process on Bruce Leicht and Dr. Earl Goldstein [doc. no. 115]. Plaintiff also filed an Ex Parte Application to

Vacate the Motion Filing Date, requesting a sixty-day extension of the March 2, 2009, deadline to file pretrial motions [doc. no. 117]. On March 11, 2009, Plaintiff filed an Application for

Enlargement of Time to File [an] Opposition to Defendants['] Motion for Summary Judgment [doc. no. 119].

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I.

Plaintiff's Requests to Reopen and Enlarge Time For Discovery and to Enlarge Time to File Pretrial Motions

Evans requests that the Court alter the Case Management Conference Order's discovery deadlines in light of his Third Amended Complaint naming Leicht and Goldstein as defendants. Discovery Attach. #2 Mem. P. & A. 3-4.) (Mot.

He also asks the Court to

vacate or extend the pretrial motion filing deadline and refers to the Court's prior Order which extended the filing deadline to March 2, 2009. (Ex Parte Application Vacate Mot. Filing Deadline 2;

Order Granting Ex Parte Application Vacate Mot. Filing Deadline 1.) The Order stated, "The Court will reset the deadline once the Court rules on Plaintiff's motions for default and for leave to file a third amended complaint." (Order Granting Ex Parte Application

Vacate Mot. Filing Deadline 1.) Defendants oppose extension of discovery cutoffs because although Evans "recently added Bruce Leicht and Dr. Earl Goldstein as defendants, . . . Plaintiff had been discussing adding them for months, and Plaintiff knew their identities and positions several months ago." (Opp'n Pl.'s Mot. Extension Discovery Cutoffs 1.)

Defendants claim that Evans could have propounded discovery regarding Leicht and Goldstein before they were named as defendants, and "even though Plaintiff was granted leave to file a third amended complaint until January 30, 2009, over 30 (thirty) days have already passed since that date, and Plaintiff has still not propounded any discovery." (Id. at 1-2.)

The Court has already found that Evans knew the identities of these individuals for a significant amount of time.

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As early as May 29, 2007, Evans was aware of Leicht's identity and position as Medical Services Administrator for the San Diego County Sheriff's Department as evidenced by a letter from County Counsel to Plaintiff asking him to cease contact with Leicht and instead direct all communications to Defendants' attorney. (Order Den. Pl.'s Decls. Entry Default 9.) With regard to

Goldstein, the Court explained, "Even if Evans was not aware of Goldstein's identity by the beginning of September, he was formally provided Goldstein's and Leicht's names and titles on September 15, 2008." (Id. at 10.) Additionally, Leicht and Goldstein both

voluntarily appeared in this case by filing answers without being named as defendants first. Leicht filed an Answer on September 25,

2008 [doc. no. 69], and Goldstein filed an Answer on October 2, 2008 [doc. no. 75]. The deadline for all discovery was December 1, 2008, which was about two months after both Leicht and Goldstein answered. Management Conference Order 1). was October 6, 2008. (Case

The deadline for written discovery The deadline to file pretrial

(Id. at 2.)

motions was March 2, 2009, close to five months after Leicht and Goldstein answered. (Order Granting Ex Parte Application Vacate Plaintiff had ample time after learning

Mot. Filing Deadline 1.)

the identities of Leicht and Goldstein to complete discovery and file any pretrial motions. Furthermore, Evans has not explained

why he has not taken any discovery from Goldstein or Leicht, either as defendants or third parties. Plaintiff has not submitted nor

described the discovery he proposes to take or the motions he proposes to file. In short, he has not shown good cause to alter

the discovery cutoffs or the pretrial motion filing deadline. Thus, Plaintiff's Motion for Discovery [doc. no. 111] and 4

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Plaintiff's Ex Parte Application to Vacate the Motion Filing Date [doc. no. 117] are DENIED. II. Application for Service of Process

Plaintiff also requests that the Court issue an order directing the U.S. Marshals Service to complete service of process of his Third Amended Complaint on Defendants Leicht and Goldstein. (Mot. Application Service Process - Summons & Third Am. Compl. 2.) Leicht's and Goldstein's voluntarily appearances in this case make service of the Third Amended Complaint on them by the U.S. Marshals unnecessary. Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir. 1967)

(explaining that "service of process (in the absence of a voluntary appearance or a conscious waiver) is an indispensable prerequisite to the court's jurisdiction to proceed[]"); see also Liao v. Ashcroft, No. C 08-2776 PJH, 2009 WL 636191, at *3 (N.D. Cal. Mar. 11, 2009). no. 115]. III. Application for Enlargement of Time to File Opposition to Defendants' Motion for Summary Judgment The initial Complaint was filed on April 13, 2006 [doc. no. 1], making this case nearly three years old. The Court has granted Thus, the Court DENIES Plaintiff's Motion as moot [doc.

multiple requests for extensions and enlargements of time, as well as permitted Plaintiff to file multiple amended complaints. Defendants have filed a Motion for Summary Judgment which was set for hearing on April 6, 2009. (Mot. Summ. J. 1.) Evans now

requests an extension of time to file his opposition to Defendants' Motion for Summary Judgment to June 5, 2009, citing his outstanding motions and explaining that he "is in the process of obtaining needed affidavits, authenticated and relevant material documents 5

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and/or declarations from medical and other professionals . . . ." (Pl.'s Application Enlargement Time Opp'n Defs. Mot. Summ. J. 2.) The final pretrial conference in this case is currently set before United States District Judge Jeffrey T. Miller on May 1, 2009, with a trial to begin June 1, 2009. 6). Plaintiff's Application for Enlargement of Time to File [an] Opposition to Defendants['] Motion for Summary Judgment [doc. no. 119] is GRANTED in part. Evans may file any opposition to the Defendants (Case Management Conference Order

Motion for Summary Judgment no later than May 5, 2009. may file a reply no later than May 22, 2009.

The parties are

warned to proceed with this case with the expectation that no other requests for extensions or enlargements of time will be granted. CONCLUSION Plaintiff's Motion for Discovery [doc. no. 111], Ex Parte Application to Vacate the Motion Filing Date [doc. no. 117], and Application for Service of Process [doc. no. 115] are DENIED. Court GRANTS in part Plaintiff's Application for Enlargement of Time to File [an] Opposition to Defendants['] Motion for Summary Judgment [doc. no. 119]; Evans may file any opposition no later than May 5, 2009. 2009. Defendants may file a reply no later May 22, The

The hearing on Defendants' Motion for Summary Judgment

currently set for April 6, 2009, at 10:00 a.m. is vacated and reset for June 1, 2009, at 10:00 a.m. The pretrial conference date of May 1, 2009, and trial date of June 1, 2009, currently set on Judge Miller's calendar are vacated.

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The mandatory settlement conference set for April 3, 2009, at 10:00 a.m. is vacated and reset for September 2, 2009, at 8:30 a.m. IT IS SO ORDERED.

DATE: April 2, 2009

_____________________________ RUBEN B. BROOKS United States Magistrate Judge

cc:

Judge Miller All Parties of Record

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