Opinion
CV-20-1123-PHX-DLR (JFM)
06-08-2021
Charles E. Nealy, Plaintiff v. David Shinn, et al., Defendants.
REPORT AND RECOMMENDATION ON MOTION TO EXTEND RE SUBSTITUTION
James F. Metcalf United States Magistrate Judge
On June 3, 2021 Plaintiff has filed a Motion to Extend (Doc. 90), seeking a 90-day extension of time to file a notice of substitution naming the fictitiously named Defendant Jhon Doe.
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of the motion to extend is dispositive of some of Plaintiff's claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
Background - On screening of Plaintiff's First Amended Complaint (Doc. 9), the Court found that Plaintiff named as a defendant CO II John (or “Jhon”) Doe, and that Plaintiff adequately stated a claim against Defendant Doe in his Counts One and Two. Plaintiff was given 120 days (or until December 27, 2021) to file a “Notice of Substitution” as to Defendant Doe. (Order 8/27/20, Doc. 11.)
On December 23, 2020 Plaintiff filed a Motion to Extend (Doc. 26), seeking a 90-day, first extension of the January 6, 2021 deadline to file notices of substitution for Defendant Doe, citing as cause previous unsuccessful efforts and ongoing efforts to identify the defendant. The Court granted Plaintiff until April 6, 2021 to do so, but cautioned “in light of the time allowed, further extensions will not be lightly granted.” (Order 1/13/21, Doc. 34.)
Two days after that deadline, Plaintiff filed a Motion for Extension of Time (Doc. 71), seeking an additional 60 days to obtain information on Defendant Doe, citing as cause his prior unsuccessful attempts at discovery on this point (referencing Docs. 12, 14, 15, 16, 17, 18, 21, 26, 27, 34, 35, 58, 63, 64) including amended discovery requests served March 25, 2021, and the time allowed for responses. The Court ruled:
The Court granted Plaintiff's Motion to Accept Motion for Extension (Doc. 70) and accepted the Motion to Extend (Doc. 71) as timely filed. (Order 5/11/21, Doc. 82.)
The Court finds good cause to grant the Motion to Extend, but only in part. Plaintiff has already had some 8 months to pursue discovery on this issue. Moreover, by this time, he should have received responses from Defendants on the discovery served March 25, 2021. He has not sought an extension of the discovery request deadlines (which expired March 22, 2021), or the discovery motions deadline (which expired April 19, 2021). In other words, Plaintiff should already have in his possession the information necessary to name his Defendant Doe, or alternatively will apparently not be able to identify this defendant. Moreover, this case is fast become ancient, will all but the last two pretrial deadlines (dispositive motions and final pretrial motions) now expired. Accordingly, Plaintiff will be granted a final extension of 14 days from the filing of this Order to file his notice of substitution.(Order 5/11/21, Doc. 82 at 3.)
Motion - In response, Plaintiff has filed the instant motion to extend, arguing his pro se status, recent motion to appoint counsel, and unanswered discovery as cause to extend the deadline.
Plaintiff's pro se status does not justify an extension, either in general or under the facts of this case. “Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). “[P]ro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”).
The Court has previously denied Plaintiff's motions for appointment of counsel twice before. (See Order 8/27/20, Doc. 11; Order 1/5/21, Doc. 31.) The latest motion for appointment (Doc. 86) is being denied at the time of this Report & Recommendation.
Moreover, Plaintiff has not been trapped by being unaware of applicable deadlines for substitution, discovery and discovery motions, and for procedures necessary for bringing discovery motions. These have been made explicit to Plaintiff in the Court's Scheduling Order (Doc. 22) and other orders. (See e.g. Service Order 8/27/20, Doc. 11 (substitution); Scheduling Order 12/1/20, Doc. 22 (deadlines and discovery motion procedures); Order 1/5/21, Doc. 31 (discovery procedures); Order 1/13/21, Doc. 34 (substitution); Order 1/13/21, Doc. 34 (substitution); Order 3/11/21, Doc. 60 (discovery deadlines); Order 5/5/21, Doc. 79 (discovery deadlines).)
As to the unanswered discovery, the deadline for service of discovery expired on March 22, 2021, and the deadline for discovery motions expired on April 19, 2021. (See Order 5/5/21, Doc. 79; Scheduling Order 12/1/20, Doc. 22).) Plaintiff proffers no reason to believe, in light of those expired deadlines, how Defendant Doe is expected to be identified. His recent motions to compel (Docs. 80, 89) have both been denied as delinquent (and for procedural deficiencies).
In addition, the deadline for motions to amend expired on March 25, 2021. (See Order 3/11/21, Doc. 60 (granting extension).) It is true Plaintiff has pending a Motion to Amend (Doc. 65) seeking to file a Second Amended Complaint (Doc. 66) which still lists Defendant Doe. However, the undersigned has issued a Report & Recommendation (Doc. 77) recommending the denial of that motion as futile.
In the meantime, assuming an amendment is not permitted, pretrial proceedings in this case are drawing to a close. The dispositive motions deadline expired on June 3, 2021 without the filing of such a motion. The only remaining unexpired pretrial deadline is that for “final pretrial motions” (excluding those related to the conduct of trial), which expires on June 17, 2021. (See Order 5/5/21, Doc. 79.)
Thus, Plaintiff fails to show any likelihood that he will be able to provide a name for Defendant Doe, and has failed to show good cause to extend the deadline to do so.
IT IS THEREFORE RECOMMENDED:
(A) Plaintiffs Motion to Extend (Doc. 90) be DENIED.
(B) Defendant Jhon Doe be DISMISSED WITHOUT PREJUDICE
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”