(PC) Rivas v. Williams

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DANIEL J. RIVAS, Case No. 1:19-cv-00328-BAM (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ SECOND MOTION TO MODIFY THE 13 v. DISCOVERY AND SCHEDULING ORDER WILLIAMS, et al., (ECF No. 33) 15 Defendants. Exhaustion Motion Deadline: January 4, 2021 17 Plaintiff Daniel J. Rivas (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Williams and Garcia for deliberate indifference to a serious medical need in violation of the Eighth Amendment. All parties have consented to United States Magistrate Judge jurisdiction. (ECF Nos. 6, 24.)

22 Pursuant to the Court’s July 22, 2020 Discovery and Scheduling Order, and October 22, 2020 order granting Defendants’ motion to modify the Discovery and Scheduling Order, the deadline for filing motions for summary judgment for failure to exhaust administrative remedies is December 4, 2020. (ECF Nos. 28, 32.)

26 Currently before the Court is Defendants’ December 4, 2020 second motion to modify the discovery and scheduling order to extend the deadline to file a motion for summary judgment for failure to exhaust administrative remedies until January 4, 2021. (ECF No. 33.) Although Plaintiff has not had an opportunity to respond to the motion, the Court finds a response unnecessary and the motion is deemed submitted. Local Rule 230(l).

3 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry should end. Id. 9 Defense counsel states that good cause exists to modify the scheduling order because Defendants have been diligently preparing their motion for summary judgment based on exhaustion grounds, but still require additional time to complete that motion. (ECF No. 33.)

12 Defense counsel’s caseload has taken necessary time away from the full preparation of Defendants’ motion for summary judgment, despite her continued efforts to complete the motion after the Court’s first extension of the deadline. Defendants request that the current deadline be extended by an additional thirty days, and that all other deadlines remain in place. (Id.) 16 Having considered Defendants’ request, the Court finds good cause to continue the exhaustion motion deadline in this action. The Court finds that Plaintiff will not be prejudiced by the brief extension requested here, and it will not result in a delay in the prosecution of this case as all other deadlines will remain in place.

20 Based on the foregoing, Defendants’ second motion to modify the discovery and scheduling order, (ECF No. 33), is HEREBY GRANTED. Motions for summary judgment for failure to exhaust administrative remedies shall be filed on or before January 4, 2021.

IT IS SO ORDERED.

25 Dated: December 7, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE