Opinion
2:21-cv-02186-DJC-CKD P
10-11-2023
JUAN CARLOS GARCIA AYALA, Plaintiff, v. GARY REDMAN, et al., Defendants.
ORDER
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Plaintiff is a former county inmate currently in state custody who is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court are plaintiff's motion to amend his complaint as well as a motion to modify the discovery and scheduling order that was entered on April 17, 2023. ECF Nos. 57-58, 60. Defendants have filed statements of non-opposition to both motions. ECF Nos. 59, 63.
Following screening of the second amended complaint, plaintiff was given the option of proceeding on his Fourteenth Amendment excessive force claims against defendants La Barbera and Creach, or of amending his complaint to fix the deficiencies with the Eighth Amendment deliberate indifference to his serious medical needs claim stemming from the use of force against him on October 21, 2021. ECF No. 41. Plaintiff elected to proceed on the Fourteenth Amendment claims found cognizable and to voluntarily dismiss the putative Eighth Amendment claim. ECF No. 42. As a result, defendants La Barbera and Creach were served and a discovery and scheduling order was issued.
Plaintiff's motion to amend the complaint was constructively filed on July 24, 2023. The court notes that no proposed amended complaint was filed with the motion. However, the motion requests an extension of time to file an amended complaint in this case. In light of plaintiff's pro se status, the court will not deny plaintiff's motion based on this procedural flaw. The motion also indicates that plaintiff has limited English language skills and is suffering from both physical and mental health issues. ECF No. 60. Furthermore, defendants do not oppose plaintiff's motion to amend the complaint. ECF No. 63. In light of the foregoing, the court will grant plaintiff's motion to amend his complaint to attempt to cure the defects with the Eighth Amendment deliberate indifference claim. See Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that leave to amend “shall be freely given when justice so requires.”). Plaintiff may file a third amended complaint within 30 days from the date of this order limited to claims arising from his incarceration at the Amador County Jail on October 21, 2021.
The filing date was calculated using the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988).
Plaintiff has also filed motions to modify the discovery and scheduling order in this case because they cannot be complied with based on his limited English language skills. ECF Nos. 57-58. Defendants have filed a statement of non-opposition to this motion as well. ECF No. 59. Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). This 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. In this case, there is no indication in the record that plaintiff has not been diligent. Therefore, the court will grant plaintiff's motion to modify the scheduling order in this case.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to amend the complaint (ECF No. 60) is granted, limited to claims arising from plaintiff's incarceration at Amador County Jail on October 21, 2021.
2. Plaintiff may file a third amended complaint within 30 days from the date of this order.
3. Plaintiff's motions to modify the discovery and scheduling order (ECF Nos. 57-58) are also granted.
4. All pending deadlines in this case are hereby vacated and will be reset as necessary following the screening of plaintiff's third amended complaint.
5. If plaintiff fails to file a third amended complaint within the time provided, the court will reset the discovery and dispositive motions deadlines limited to the Fourteenth Amendment excessive force claims against defendants La Barbera and Creach.