Opinion
1:19-cv-01508-AWI-EPG (PC)
06-01-2021
L.C. CUNNINGHAM, Plaintiff, v. M. MARTINEZ, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO MODIFY THE COURT'S DISCOVERY AND SCHEDULING ORDER
(ECF No. 77)
L.C. Cunningham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
On May 27, 2021, Defendants filed a motion to modify the scheduling order. (ECF No. 77). “Defendants Martinez and Harmon move for an order modifying the deadline to file an exhaustion-based motion for summary judgment in this matter on the grounds that Defendants need additional time to secure a declaration for the Chief of the Office of Appeals, H. Moseley, to complete the motion. Additionally, Defendants' counsel is scheduled to be on intermittent person al leave from May 18 to July 7, 2021. Based on those reasons, Defendants seek an additional sixty days to complete an exhaustion-based motion for summary judgment.” (Id. at 1).
As granting the motion will not change any other dates or deadlines in the schedule, and as Defendants have shown good cause for an extension, the Court will grant the motion.
Accordingly, IT IS ORDERED that Defendants have until July 26, 2021, to present any challenge for failure to exhaust administrative remedies. Failure to raise the exhaustion defense by this deadline will result in waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (providing that the exhaustion question should be decided as early as feasible).
All other deadlines in the Scheduling Order shall remain as previously set.
IT IS SO ORDERED.