United States v. 2020-04-09 | 18-56082 | JAMES AUSTIN V. R. WALKER | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES AUSTIN,

Plaintiff-Appellant,

v.

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

Defendants-Appellees.

No. 18-56082

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

MEMORANDUM
*

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).
FILED

APR 9 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-56082
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,

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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.