James Austin v. R. Walker

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2020
• Docket: 18-56082
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES AUSTIN, No. 18-56082

Plaintiff-Appellant, D.C. No. 3:16-cv-02088-CAB-JLB

v. MEMORANDUM* R. WALKER, CP&S, R.J. Donovan Prison; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

James Austin, a California state prisoner, appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate

indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.

§ 1291. We review for an abuse of discretion the district court’s case management

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). decisions, Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002), and

we affirm.

The district court did not abuse its discretion in granting an extension of

time for defendants to file their summary judgment motion even after the deadline

for such filing, provided in the scheduling order, had passed, because defendants

showed excusable neglect sufficient to grant relief. See In re Veritas Software

Corp Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007) (excusable neglect test applies

to requests for extension after deadline has passed under Federal Rule of Civil

Procedure 6(b)(1)(B)); Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-25 (9th

Cir. 2000) (concluding there was excusable neglect sufficient to grant relief from

judgment where prejudice, “length of delay, and its potential impact on the judicial

proceedings, was [] minimal,” even if the reason for delay was “weak”).

Conversely, the district court did not abuse its discretion in denying Austin’s third

motion to extend the time to file his opposition motion because there was no good

cause for another extension. See Fed. R. Civ. P. 6(b)(1); Ahanchian v. Xenon

Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010).

The district court did not abuse its discretion in denying Austin’s requests to

reopen the discovery period because Austin did not diligently pursue discovery

when it was open or show how allowing additional discovery would preclude

summary judgment. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,

2 18-56082 1026 (9th Cir. 2006).

The district court did not abuse its discretion in denying Austin’s request for

appointment of a third pro bono attorney because no trial date was set and Austin

failed to show a likelihood of success on the merits or difficulty articulating his

claims. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

Because Austin failed to challenge the content or conclusions of the district

court’s summary judgment order in his opening brief, Austin has waived his

challenge to the order. See Acosta–Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.

1993) (issues not supported by argument in pro se appellant’s opening brief are

abandoned).

Austin’s motion for appointment of counsel and leave to perfect the appeal

(Docket Entry No. 23) and motion for judicial notice (Docket Entry No. 12) are

denied.

AFFIRMED.

3 18-56082