(PC) Bains v. Adams

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA SURINDER BAINS, No. 2:23-0986 CSK P 12 Plaintiff, 13 v. ORDER ADAMS, et al., 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se. Defendants’ second motion to modify the Discovery and Scheduling Order based on plaintiff’s alleged failure to properly respond to interrogatories and requests for production of documents is before the Court. (ECF No. 21.) As discussed below, defendants’ second motion to modify is granted, and plaintiff is ordered to file an opposition or statement of non-opposition to defendants’ motion to compel discovery.

22 I. BACKGROUND 23 This action proceeds on plaintiff’s complaint against defendants Anise Adams, Sgt.

24 Bertolino, Sgt. F. Cassillas, and Sgt. Fears for their alleged deliberate indifference to the substantial risk of harm from COVID in violation of the Eighth Amendment. (ECF No. 1.)

26 Plaintiff alleges defendants’ intentional acts or omissions caused plaintiff to become infected with COVID on two separate occasions. (Id.) /// 1 On April 29, 2024, the Court issued the Discovery and Scheduling Order, setting the discovery deadline for August 16, 2024, and the pretrial motions deadline for November 8, 2024.

3 (ECF No. 15.)

4 On August 1, 2024, plaintiff was granted thirty days to respond to defendant Adams’ first set of interrogatories and first request for production of documents. (ECF No. 17.) On August 2, 2024, defendants filed a motion to extend the discovery and pretrial motions deadlines based on the extension of time. (ECF No. 18.) On August 7, 2024, defendants’ motion was granted, and the discovery deadline was extended to October 15, 2024, and the pretrial motions deadline was extended to January 7, 2025. (ECF No. 19.)

10 On October 7, 2024, defendants filed their second motion to modify the Court’s scheduling order. (ECF No. 21.) Defendants ask the Court to vacate the discovery and pretrial motions deadlines until after the Court addresses defendants’ concurrently filed motion to compel discovery responses. (ECF No. 20.)

14 Plaintiff has not filed a response to the second motion to modify the Court’s scheduling order, or an opposition or statement of no opposition to defendants’ motion to compel discovery responses. See Local Rule 230(l).

17 II. GOVERNING STANDARDS 18 “The district court is given broad discretion in supervising the pretrial phase of litigation.”

19 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified ‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

23 Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting 24 Johnson, 975 F.2d at 607).

25 III. DISCUSSION 26 Defendants have shown good cause to vacate this Court’s deadlines. Defendants aver that plaintiff’s failure to provide discovery responses forced them to postpone plaintiff’s deposition and file their motion to compel discovery. (ECF No. 21 at 3.) Defendants state they are unable to properly evaluate plaintiff’s claims and putative defenses until plaintiff provides complete discovery responses. (Id.) Plaintiff filed nothing in response to defendants’ second motion to modify the scheduling order. In light of the pendency of the motion to compel, and the postponement of plaintiff’s deposition, the discovery and pretrial motions deadlines are vacated and will be reset, if appropriate, following resolution of defendants’ motion to compel discovery responses.

7 In addition, plaintiff has not filed an opposition or statement of no opposition to defendants’ motion to compel discovery responses. Local Rule 230(l) provides in part: “Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . .” Local Rule 230(l).

11 Plaintiff is granted an additional twenty-one days to file an opposition or statement of no opposition to defendants’ motion to compel discovery responses (ECF No. 20).

13 Plaintiff is cautioned that he is required to cooperate in discovery. Failure to cooperate in discovery may result in the imposition of sanctions, including, but not limited to, a recommendation that this action be dismissed. See Fed. R. Civ. P. 37(b)(2)(A) (sanctions may be imposed for failure to comply with a discovery order); Fed. R. Civ. P. 37(d)(3) (sanctions may be imposed for failure to serve answers to interrogatories or to respond to request for production of documents).

19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Defendants’ second motion to modify the Discovery and Scheduling Order (ECF No. 21 21) is granted.

22 2. The discovery and pretrial motions deadlines set in the April 19, 2024 order (ECF No. 23 15) are vacated pending further order of the Court.

24 3. Within fourteen days from the date of this order, plaintiff shall file an opposition or 25 statement of no opposition to defendants’ motion to compel further discovery 26 responses. Plaintiff is cautioned that failure to file an opposition or statement of non- 27 opposition may result in an order imposing sanctions, as set forth above.

28 //// | Dated: November 12, 2024 > Chm Spo CHI S00 KIM 3 UNITED STATES MAGISTRATE JUDGE || /1/bain0986.16b2