Gibson v. Southern Desert Correctional Center et al

Filing 20

ORDER Denying 17 Motion to Extend Time. Denying 19 Motion for Leave. Signed by Magistrate Judge Peggy A. Leen on 8/23/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAMIEN GIBSON,

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Case No. 2:14-cv-01812-KJD-PAL
Plaintiff,

v.

ORDER

SOUTHERN DESERT CORRECTIONAL
CENTER, et al.,

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(Mot. Ext. Discovery – ECF No. 17;
Mot. Alert Court – ECF No. 19)

Defendants.

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This matter is before the Court on Plaintiff Damien Gibson’s Motion to Extend

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Discovery (ECF No. 17) and Motion for Leave to Alert the Court (ECF No. 19). These motions

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are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local

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Rules of Practice.

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This is an action on a civil rights complaint pursuant to 42 U.S.C. § 1983. Mr. Gibson is

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a prisoner proceeding in this action pro se. The court previously screened the Complaint and

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directed Clerk of the Court to file it. See Screening Order (ECF No. 2). The court’s Screening

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Order deferred a decision on Mr. Gibson’s request to proceed in forma pauperis (“IFP”) and

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imposed a 90-day stay to allow the parties an opportunity to settle their dispute through the

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Inmate Early Mediation Program before the filing of an answer or starting the discovery process.

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Id. However, the parties did not reach a settlement and the case was returned to the normal

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litigation track. See Mins of Proceedings (ECF No. 8); Status Report (ECF No. 9). The court

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subsequently granted Mr. Gibson’ IFP Application (ECF No. 1) and directed service of the

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complaint. See Order (ECF No. 11). On October 15, 201, the Nevada Office of the Attorney

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General accepted service on behalf of Defendants Francisco Sanchez, Benedicto Gutierrez, Brian

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Williams, Minor Adams, Scott Sisco, and Jose Navarette (the “NDOC Defendants”). See Notice
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Acceptance of Service (ECF No. 12). The NDOC Defendants filed their Answer (ECF No. 13)

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to the Complaint on December 4, 2015.

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The parties jointly submitted a proposed Discovery Plan and Scheduling Order (ECF

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No. 14) on January 20, 2016. The court entered the Scheduling Order (ECF No. 15) directing

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that discovery in this action shall be completed 180 days from the date of the Order, which is

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August 30, 2016. The court’s docket indicates that the Clerk of the Court mailed notice of the

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scheduling order to Mr. Gibson at the Southern Desert Correctional Center.

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Mr. Gibson’s Motion to Extend Discovery (ECF No. 17), filed July 11, 2016, states that

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he never received notification that the court entered a scheduling order beginning discovery.

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Thus, he asks the court to grant an extension or issue a new scheduling order. The NDOC

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Defendants filed an Opposition (ECF No. 18) arguing that Mr. Gibson’s request fails to comply

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with LR 26-4’s requirement that motions to extend discovery deadlines include a statement

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providing a specific description of the discovery that remains to be completed and a proposed

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schedule for completing all remaining discovery. The NDOC Defendants also assert that an

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extension of the discovery deadlines would unnecessarily delay the pleadings. Mr. Gibson did

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not file a reply and the deadline for doing so has now passed.

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When a request is made to modify a discovery plan and scheduling order before the

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expiration of the deadlines therein, a district court may extend the discovery deadlines upon a

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showing of “good cause.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

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The good cause standard “primarily considers the diligence of the party seeking the amendment.”

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Id. Discovery extensions may be allowed if the deadlines “cannot reasonably be met despite the

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diligence of the party seeking the extension.” Id. Additionally, any motion or stipulation to

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extend a deadline or to reopen discovery must comply with LR 26-4 and LR IA 6-1 of the Local

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Rules of Practice, and include the following:

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(a) A statement specifying the discovery completed;
(b) A specific description of the discovery that remains to be
completed;
(c) The reasons why the deadline was not satisfied or the
remaining discovery was not completed within the time limits set
by the discovery plan; and,
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(d) A proposed schedule for completing all remaining discovery.

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See LR 26-4.

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Mr. Gibson’s Motion (ECF No. 17) does not establish good cause for a discovery

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extension. It is unclear from the Motion how he claims he eventually learned that the scheduling

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order was entered March 3, 2016. However, the court’s docket indicates that the Clerk of the

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Court mailed notice of the scheduling order to Mr. Gibson at the Southern Desert Correctional

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Center upon entry of the order. Mr. Gibson’s participated in drafting of the proposed discovery

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plan and scheduling order in January 2016 which certainly placed him notice that discovery was

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about to begin. Counsel for the NDOC Defendants represents that Mr. Gibson did not contact

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him in the six months since then. Opp’n (ECF No. 18) at 2:10–12. Although the Motion was

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filed almost 60 days before the close of discovery, the court cannot Mr. Gibson’s six months of

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inaction cannot be ignored. Additionally, the Motion fails to state the specific discovery he

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needs to complete or propose a schedule to complete his discovery as required by LR 26-4. The

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Motion is denied.

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Mr. Gibson has also filed a Motion (ECF No. 19) requesting leave for the sole purpose of

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alerting the court that he is exercising his right to discovery; it does not request any relief from

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the court.

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Accordingly,

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IT IS ORDERED: Plaintiff Damien Gibson’s Motion to Extend Discovery (ECF

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No. 17) is DENIED and Motion for Leave to Alert the Court (ECF No. 19) is DENIED as no

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relief is sought from the court.

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Dated this 23nd day of August, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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