(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’ THIRD MOTION TO MODIFY THE DISCOVERY 13 v. AND SCHEDULING ORDER WILLIAMS, et al., (ECF No. 35) 15 Defendants. Exhaustion Motion Deadline: February 18, 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 and December 7, 2020 orders granting Defendants’ motions to modify the Discovery and Scheduling Order, the deadline for filing motions for summary judgment for failure to exhaust administrative remedies is January 4, 2021. (ECF Nos. 28, 32, 34.)

26 Currently before the Court is Defendants’ third 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 February 18, 2021. (ECF No. 35.) 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, and the motion is largely complete. (ECF No. 35.) However, Plaintiff’s record of administrative grievances is extensive, and Defendants’ counsel recently discovered on December 14, 2020, that certain sets of administrative grievances were incomplete by inadvertent omission. Until December 14, 2020, counsel had a good-faith belief that Defendants had received all documents meant to be included in CDCR’s Office of Appeals responses to counsel’s requests.

16 Although counsel received the omitted documents two days later, Defendants require additional time to procure the declarations needed to support the motion for summary judgment, and to ensure that the complete record of relevant administrative appeals are provided for the Court’s consideration of that motion. Counsel anticipates that, given the upcoming holidays, Defendants’ witnesses will require additional time to review the relevant appeals and grievances relevant to the motion. Defendants request that the current deadline be extended by an additional forty-five days, and that all other deadlines remain in place. (Id.) 23 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 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. However, Defendants are advised that further requests for extension of this deadline will be subject to a narrow interpretation of good cause.

28 /// 1 Based on the foregoing, Defendants’ third motion to modify the discovery and scheduling order, (ECF No. 35), is HEREBY GRANTED. Motions for summary judgment for failure to exhaust administrative remedies shall be filed on or before February 18, 2021.

IT IS SO ORDERED.

6 Dated: December 22, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE