United States District Court, S.D. Ohio, Western Division
L. Litkovitz, M.J.
a former inmate at the Lebanon Correctional Institution
(LeCI), brings this civil rights action pursuant to 42 U.S.C.
§ 1983. This matter is before the Court on
defendants' motion to reopen discovery and extend the
dispositive motion deadline (Doc. 84) and plaintiffs response
in opposition (Doc. 85).
case has a lengthy procedural history dating back to 2014.
Plaintiff first filed his pro se complaint in this matter in
February 2014. Plaintiff alleged that beginning in December
2011, he repeatedly advised the medical staff at LeCI that he
was experiencing severe headaches and intense pain that
prevented him from eating or sleeping and was not permitted
to see a doctor or receive any treatment besides ibuprofen,
which plaintiff claims did nothing to alleviate his symptoms.
(See Docs. 1, 3). Plaintiff stated that he suffered
from these symptoms for over one month and after he passed
out in early February, he was taken to the local hospital
where it was discovered that he had a blood clot behind his
eye. (Id.). Plaintiff alleged he was hospitalized
for one month and that he is now legally blind as a result of
the lack of medical care. (Id. at 6-7).
Subsequently, in March 2016, plaintiff was granted leave to
file an amended complaint to name three unidentified John Doe
defendants. (Docs. 33, 36). On August 30, 2016, defendants
moved to dismiss plaintiffs original and amended complaints
under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon
which relief can be granted. (Doc. 45). On September 22,
2016, attorney Robert Klingler entered an appearance on
plaintiffs behalf and filed an unopposed motion for an
extension of time to respond to the motion to dismiss, which
the Court granted. (Docs. 48, 49, 50, 51, 52). In November
2016, through counsel, plaintiff responded to the motion to
dismiss and moved for leave to file a second amended
complaint. (Docs. 53, 54). On January 17, 2017, the Court
granted plaintiffs motion for leave to file an amended
complaint and denied as moot defendants' motion to
dismiss. (Doc. 60). Defendants have yet to file another
calendar order in this case has been amended several times.
Most recently, on October 30, 2017, the Court granted the
parties' joint motion to amend the calendar order, which
extended the discovery deadline to February 12, 2018 and the
dispositive motion deadline to March 18, 2018. (Doc. 83).
The Parties' Positions
move for an order reopening discovery sixty (60) days to
allow inquiry into the level of plaintiff s vision
impairment. (Doc, 84 at 1-3). Defendants also move for an
extension of the dispositive motion deadline for thirty (30)
days after the close of discovery. (Id.). Defendants
represent that good cause exists to modify the scheduling
order due to existing settlement discussions. (Id.
at 2). Defendants explain that they asked plaintiff for a
concrete settlement demand in January 2018. (Id.).
After several follow-up inquiries, plaintiff presented a
demand to defendants on March 1, 2018. (Id.).
Defendants explain that "[a] myriad of factual
allegations concerning Plaintiffs abilities and his level of
vision accompanied the settlement demand" that "had
never before been brought to [their] attention."
(Id.). Defendants further explain that they need to
conduct a few short depositions to investigate the extent of
plaintiff s injuries in order to continue engaging in
settlement discussions and craft a well-reasoned dispositive
opposes defendants' motion, arguing that defendants have
not suggested, until filing this present motion, that they
intended to take plaintiffs deposition. (Doc. 85 at 1).
Plaintiff maintains that defendants have long known the
extent of plaintiff s injuries at issue in this case.
(Id. at 2). Plaintiff states: "Plaintiffs
counsel suggested that he could make Plaintiff available at
the appropriate time to answer questions Defendants might
have about his damages, but that he would not voluntarily
extend discovery for the purpose of taking Plaintiffs
deposition to be used against him in a summary judgment
motion and to delay the current schedule."
(Id.). Plaintiff maintains that the defendants had a
responsibility to investigate the extent of plaintiff s
injuries during discovery and there is no good faith or
reasonable basis for extending the deadline to allow further
inquiry into the extent of these injuries. (Id.).
Fed.R.Civ.P. 16(b), the Court must issue a scheduling order
limiting the time to join other parties, amend the pleadings,
complete discovery, and file motions. Fed. R, Civ. P
(b)(3)(A). A scheduling order "may be modified only for
good cause and with the judge's consent."
Fed.R.Civ.P. 16(b)(4). See also S.D. Ohio Civ. R.
16.2 ("the Magistrate Judge is empowered to enter
scheduling orders under Fed.R.Civ.P. 16(b) and to modify
scheduling orders upon a showing of good cause"). The
factors the Court should consider in exercising its
discretion as to whether to modify a schedule include: (1)
when the movant learned of the issue that is the subject of
the requested discovery; (2) the length of the discovery
period; (3) whether the movant was dilatory; and (4) whether
the opposing party was responsive to the movant's prior
discovery requests. Dowling v. Cleveland Clinic
Found., 593 F.3d 472, 478 (6th Cir. 2010). "The
overarching inquiry in these overlapping factors is whether
the moving party was diligent in pursuing discovery."
Id. Although the primary focus is on the
movant's diligence, "the presence or absence of
prejudice to the other party or parties is a factor to be
considered." Ortiz v. Karnes, 2:06-cv-562, 2010
WL 2991501, at *1 (S.D. Ohio, July 26, 2010) (citing
Inge v. Rock Fin. Corp., 281 F.3d 613 (6th
case, the relevant factors weigh in favor of granting
defendants' request to reopen discovery. Although the
parties disagree about whether defendants diligently
investigated facts related to plaintiffs injuries during
discovery, defendants argue that new factual allegations
involving the extent of plaintiffs visual impairments were
not discovered until recently-when plaintiff presented a
settlement demand on March 1, 2018. (Doc. 84 at 2). Thus, the
first factor to be considered weighs in favor of granting
defendants an extension of the discovery deadline. The
remaining factors likewise weigh in favor of extending the
discovery deadline. Although defendants have had ample time
to complete discovery, defendants have not acted dilatory in
requesting an extension of time to obtain information they
deem crucial to their case. Just five days after receiving
plaintiffs settlement demand and realizing they needed more
information about plaintiffs injuries, defendants filed the
present motion to reopen discovery. Finally, to grant the
requested extension at this stage of the litigation would not
prejudice plaintiff Although this case has been ongoing for
several years, dispositive motions and responsive memoranda
in this case have not yet been filed and the discovery
deadline ended only shortly before defendants filed this
present motion. Accordingly, defendants' motion to reopen
discovery (Doc. 84) is GRANTED.
therefore ORDERED that discovery be reopened
for sixty (60) days until June 25,
2018. In light of this extension, the dispositive
motion deadline is extended for an additional thirty