Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

SRM

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Case 2:04-cv-00446-JAT Document 237 - 1 Filed 12/14/2006 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Albert W. DeLeon, Plaintiff -vsDora B. Schriro, et al., Defendant(s) CV-04-0446-PHX-PGR (JI) ORDER

Under consideration is Plaintiff's Motion to Reopen Discovery, filed November 30, 2006 (#230). Plaintiff seeks to reopen discovery, citing counsel's recent retention and Plaintiff's prior pro se, incarcerated status. Plaintiff was apparently unsuccessful in retaining counsel while incarcerated, and only retained current counsel after his release from prison. Plaintiff argues that his damages claims was subjected to summary judgment because he was unable to garner the evidence necessary to show a causal link between Defendants' actions (e.g. forcing him to walk to a new prison unit and up six flights of stairs while shackled and without his ADOC approved cane or orthopedic shoes which are necessary because of his uneven leg lengths), and his heart attack. Plaintiff seeks to reopen discovery for a period of 90 days. Defendants oppose (#232) the request, noting that Plaintiff had ample opportunity to engage in discovery, has not shown what additional discovery would resurrect his denied claims, and that it is generally too late in the day for a reopening of discovery to be fair to Defendants. Plaintiff replies (#233) that the limitations inherent in his pro se, incarcerated status (including lack of legal resources), coupled with his limited formal education, and physical limitations, hampered his discovery attempts. Plaintiff outlines his proposed discovery, including depositions of defendants, physicians, expert witnesses, and discovery to determine

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the cause for the delay in returning Plaintiff's cane and orthopedic shoes.1 Applicable Law - Rule 16 provides that a case schedule adopted pursuant to that rule shall not be modified "except upon a showing of good cause." "Rule 16(b)' s `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 district court may

modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment). Conversely, "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609.2 Diligence - Plaintiff has been diligent since retention of counsel. Counsel appeared on October 30, 2006 (#227), having only recently been retained. Counsel filed the instant motion on November 30th (#230), while at the same time working out the jointly proposed pretrial order (#231). Thus, if there is a lack of diligence, it must have arisen prior to the appointment of counsel. Moreover, Plaintiff was diligent in seeking counsel. Plaintiff filed his first request for counsel on August 11, 2004 (#21). He again unsuccessfully requested appointment of counsel on September 26, 2006 (#220). After his release from incarceration on June 12, 2006, Plaintiff contacted numerous attorneys seeking representation, until being successful with current counsel. The delay was in the Plaintiff's pursuit of the now requested additional discovery. Defendants argue that Plaintiff had ample opportunity to conduct discovery.

Plaintiff has filed a Supplement (#235) in support of his motion, providing copies of medical records. Plaintiff has not sought leave to file a surreply. Accordingly, the Court does not consider this filing. Even if considered, this filing would be of limited benefit. There does not appear to be a determination of causation beyond the chronological correlation based on Plaintiff's narrative, and does not appear to reflect that Plaintiff suffered a "heart attack" ("serial testing is negative for myocardial injury") but simply "Chest Pain Syndrome." Plaintiff cites Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) for the proposition that the Court should not deny an extension of discovery limits to a pro se plaintiff in the face of a motion for summary judgment. However, the Jones decision was based upon Rule 56(f)'s requirement to permit necessary additional discovery prior to summary judgment, not the amendment of a schedule pursuant to Rule 16(b). Plaintiff's motion cannot be based on Rule 56(f), since partial summary judgment was granted prior to Plaintiff's motion, and there are no pending motions for summary judgment.
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Plaintiff argues, in essence, that any delay in conducting the sought after discovery during his pro se status was not from carelessness, but from Plaintiff's ignorance and incarcerated status. Plaintiff cites the decision in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) as cataloging the difficulties faced by pro se, prisoner litigants. Those limitations are well known by this Court as well, not the least of which is the limited legal resources that the Arizona Department of Corrections provides its inmates. Plaintiff did not idly sit by. He did attempt to conduct at least some discovery. However, the discovery sought now by Plaintiff, depositions, was functionally unavailable to Plaintiff before retention of counsel. The original Scheduling Order provided: 6.4. Depositions: Because of the logistical problems involved, selfrepresented incarcerated parties may not take depositions without prior Court permission. Such permission will not be granted except upon a showing of exceptional circumstances. Apart from this "exceptional circumstances" requirement itself,

(Order 7/30/04, #16 at 2.)

this provision recognizes the practical difficulties of a prisoner arranging for and conducting depositions. Moreover, Plaintiff was granted in forma pauperis status in this matter, suggesting that depositions would have been a financial impossibility during Plaintiff's incarceration. Part of Plaintiff's attempts included requests for the appointment of an expert. (See Motion #22.) That request was denied. (Order 9/7/4, #35.) Certainly, the delayed retention of counsel should not automatically void the Court's scheduling order. Where, however, the pro se prisoner litigant has diligently litigated the case to the best of his ability, and has been diligent in retaining counsel, and counsel has been diligent in seeking modifications to the schedule to conduct discovery otherwise unavailable to the Plaintiff, good cause has been shown. Prejudice - The Court notes that procedurally, this case is poised for trial. The discovery and dispositive motion deadlines passed in 2005. But for the time required to resolve Defendants' Motion for Summary Judgment (#187) (filed December 14, 2005 and decided September 14, 2006) and Plaintiff's intervening attempt at an interlocutory appeal, this
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case would likely have proceeded to trial long ago. The parties have already lodged their Proposed Joint Pretrial Order (#231). Plaintiff, in essence, asks the Court to reset the clock back more than a year, which poses obvious hardships on the Defendants. " Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609. Here, the Court has determined that Plaintiff was diligent. Accordingly, a lack of prejudice to Defendants is not essential. Here, the prejudice cited by Defendants is simply further delay in the proceedings, and the risk of fading memories. However, those concerns have little sway where the request is simply to extend discovery on claims long litigated between the parties. Certainly, such claims of prejudice may be far more relevant, if, as Defendants suggest in their Response, Plaintiff intends to amend his complaint to assert new claims. See Jackson v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990) (discussing the relevance of prejudice in denying a motion to amend for undue delay). Plaintiff does not make such a motion at this time, and consequently the Court makes no ruling on the availability of an amendment. The Court will, however, set a new deadline for any motion to amend, which motion will be subject to all defenses, including an assertion of undue delay. In sum, the Court finds that Plaintiff has been as diligent as his circumstances would allow, and that there is no substantial prejudice from this limited request to extend discovery. IT IS THEREFORE ORDERED that Plaintiff's Motion to Reopen Discovery, filed November 30, 2006 (#230) is GRANTED. IT IS FURTHER ORDERED that the following amendments to the Schedule herein shall apply: 1. 2. Depositions - Plaintiff shall have until March 16, 2007 to conduct depositions. Plaintiff's Experts - Plaintiff shall have until April 6, 2007 to disclose all expert witnesses and their Rule 26(a)(2)(B) Reports. 3. Defendants' Experts - Defendants shall have until April 27, 2006 to disclose
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all expert witnesses and their Rule 26(a)(2)(B) Reports. Motions to Amend - Plaintiff shall have until March 16, 2006 to file any motions to amend the complaint. Motions to Reconsider - Plaintiff shall have until April 27, 2006 to file any motions for reconsideration of Judge Rosenblatt's Order (#218), granting partial summary judgment. Pretrial Motions: All other pretrial motions, other than motions in limine, shall be filed by May 25, 2007. Joint Pretrial Statement and Proposed Order: The parties shall lodge a joint pretrial statement and proposed order, on or before May 25, 2007.

DATED: December 13, 2006
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_____________________________________ JAY R. IRWIN United States Magistrate Judge

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