McElroy v. Cox et al

Filing 122

ORDER DENYING 111 Motion to Reset Trial Date, signed by District Judge Lawrence J. O'Neill on 04/13/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATWAHN McELROY,

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1:08-cv-01221-LJO-GSA PC

Plaintiff,

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v.

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ORDER DENYING REQUEST TO RESET
TRIAL DATE

ROY COX, et al.,

(Doc. 111.)
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Defendants.
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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Latwahn McElroy, a state

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prisoner proceeding pro se and in forma pauperis. This case has been scheduled for jury trial to

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commence on June 19, 2012 at 8:30 a.m. before District Judge Lawrence J. O’Neill.

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This action now proceeds with Plaintiff’s First Amended Complaint, filed on February 1,

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2010, against defendants Correctional Officer (C/O) Roy Cox, C/O B. Cope, C/O R. Robles, C/O

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Paul Rocha, C/O Thomas Acosta, and C/O Sherri Stinnett for use of excessive force in violation of

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the Eighth Amendment; against defendants C/O Paul Rocha and C/O Thomas Acosta for failure to

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protect Plaintiff, in violation of the Eighth Amendment; and against defendant Nurse M. Hankins

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(LVN) for denial of medical care in violation of the Eighth Amendment. (Doc. 33.)

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On March 9, 2012, the Court issued a scheduling order setting the date for trial in this action

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for June 19, 2012. (Doc. 105.) On March 15, 2012, defendants Cope, Cox, Acosta, Robles,

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Hankins, and Stinnett (Defendants) filed a motion to reset the trial date.1 (Doc. 111.) On March 26,

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2012, Plaintiff filed an opposition. (Doc. 117.)

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II.

MOTION TO MODIFY SCHEDULING ORDER

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Modification of a scheduling order requires a showing of good cause and the judge’s consent.

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Fed. R. Civ. P. 16(b). Defendants have requested that the June 19, 2012 trial date in this action be

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reset due to a scheduling conflict for Defendants’ counsel, Deputy Attorney General (DAG) Phillip

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L. Arthur (Counsel). Counsel argues that the trial should be continued to July 10, 2012, or the next

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available trial date, because he is scheduled to represent parties in another case at trial in Sacramento

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on June 19, 2012. (Declaration of Phillip Arthur, Doc. 111 ¶¶3, 4.)

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In opposition, Plaintiff argues that his health and safety will be jeopardized if the trial is

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continued, because the longer the delay, the more pain he will suffer before this case is resolved.

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Plaintiff also argues that the Attorney General’s Office has the ability to substitute another DAG to

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represent Defendants at trial on the scheduled date.

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The Court finds no good cause to continue the trial in this action. More than two months

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remain before the scheduled trial date. With this much notice of a conflict, coupled with the size of

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the Attorney General’s office and the factual and legal simplicity of the claims in this action, no

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continuances shall be granted.

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III.

CONCLUSION

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Based on the foregoing, the Court finds no good cause to reset the trial date in this action.

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Therefore, IT IS HEREBY ORDERED that Defendants’ motion to reset the trial date is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

April 13, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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Defendant Rocha is proceeding separately, in pro per.

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