Filed: Jul. 21, 2014
Latest Update: Jul. 21, 2014
Summary: ORDER CAROLYN K. DELANEY, Magistrate Judge. This pro se prisoner action pursuant to 28 U.S.C. 1983 is set for trial in January 2015. Discovery closed on June 28, 2013, and defendant's motion for summary judgment was denied on January 29, 2014. (ECF Nos. 14, 29.) Before the court is plaintiff's July 7, 2014 motion to re-open discovery. (ECF No. 40.) He asserts that "there was no discovery conducted in this case with the defendant or prospective witnesses and no pretrial motion practice." (EC
Summary: ORDER CAROLYN K. DELANEY, Magistrate Judge. This pro se prisoner action pursuant to 28 U.S.C. 1983 is set for trial in January 2015. Discovery closed on June 28, 2013, and defendant's motion for summary judgment was denied on January 29, 2014. (ECF Nos. 14, 29.) Before the court is plaintiff's July 7, 2014 motion to re-open discovery. (ECF No. 40.) He asserts that "there was no discovery conducted in this case with the defendant or prospective witnesses and no pretrial motion practice." (ECF..
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ORDER
CAROLYN K. DELANEY, Magistrate Judge.
This pro se prisoner action pursuant to 28 U.S.C. § 1983 is set for trial in January 2015. Discovery closed on June 28, 2013, and defendant's motion for summary judgment was denied on January 29, 2014. (ECF Nos. 14, 29.)
Before the court is plaintiff's July 7, 2014 motion to re-open discovery. (ECF No. 40.) He asserts that "there was no discovery conducted in this case with the defendant or prospective witnesses and no pretrial motion practice." (ECF No. 40 at 2.) After consulting with another inmate, plaintiff now seeks to propound discovery on defendant Brazil. (Id. at 5-7.)
Modification of the court's scheduling order to allow further discovery requires a showing of good cause, Fed. R. Civ. P. 16(b)(4), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). To establish good cause, the party seeking the modification of a scheduling order must generally show that even with the exercise of due diligence, they cannot meet the requirement of the order. Id. The court may also consider the prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
Here plaintiff cites his "very limited assistance [from] other jailhouse lawyer inmates" and his "participation [in] the Enhanced Outpatient Care Program within a punitive segregation unit and Administrative Segregation Unit . . . with sever[e] limited access to law library and legal property[.]" (ECF No. 40 at 1-2.) However, plaintiff has not alleged facts showing that he was diligent in attempting to meet the discovery deadline. Absent such diligence, the court will not re-open discovery at this late date.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to "[Rescind] Motion and Discovery Cut-Off Dates" (ECF No. 40) is denied.
