Zavala v. Chrones et al

Filing 156

ORDER Denying Plaintiff's Motion To Continue Trial (ECF No. 154 ), signed by Magistrate Judge Barbara A. McAuliffe on 2/8/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KEITH ZAVALA,

CASE NO. 1:09-cv-01352-BAM PC

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ORDER DENYING PLAINTIFF’S MOTION TO
CONTINUE TRIAL
(ECF No. 154.)

Plaintiff,
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v.
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CHRIS CHRONES, et al.,
Defendants.
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Plaintiff Keith Zavala is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Chris

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Chrones, D. Smith, S. Kays, S. Chandler, J. Soto and C. Martin for failure to protect in violation of

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the Eighth Amendment. The parties have consented to Magistrate Judge jurisdiction. A jury trial

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is set for February 12, 2013.

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On January 28, 2013, Plaintiff filed a motion for extension of the trial date. (ECF No. 147.)

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Plaintiff requested a continuation of the trial because he anticipates legal representation by James

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M. Hodges, an attorney. Defendants opposed the motion on January 30, 2013, claiming that

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continuation of the trial would be highly prejudicial to the Defendants and to the Court. Defendants

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also noted that Mr. Hodges had not entered a Notice of Appearance as attorney of record in this

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matter pursuant to the Local Rules.

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On February 5, 2013, the Court held a hearing and addressed Plaintiff’s motion to continue

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the trial. Thereafter, on February 6, 2013, the Court denied Plaintiff’s motion, finding that
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continuation of the trial would be highly prejudicial to Defendants, who are prepared to proceed to

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trial on the scheduled date. The Court also noted that was no assurance that Mr. Hodges would agree

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to represent Plaintiff and would make an appearance in this matter. (ECF No. 153.)

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On February 7, 2013, Mr. Hodges filed a notice stating that he has been retained to represent

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Plaintiff in this matter. (ECF No. 154.) Mr. Hodges requests (1) a court order allowing him to

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appear on behalf of Plaintiff and (2) a court order granting continuance of the trial.

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As to the first request, a court order allowing Mr. Hodges to appear on behalf of Plaintiff is

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unnecessary. Mr. Hodges entered his appearance on the record by filing his notice. Thus, his request

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is moot.

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As to the second request, the Court declines to continue the trial. In reaching this

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determination, the Court reviewed Mr. Hodges’ declaration in support of the request to continue

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(ECF No. 154.) According to that declaration, Mr. Hodges has been attempting to meet with

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Plaintiff since January 17, 2013, and only has spoken with Plaintiff on three occasions since that

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time. Mr. Hodges has yet to meet with Plaintiff to review any evidence or to consider any proposed

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witness testimony and has yet to be informed whether he will be able to meet with Plaintiff before

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the February 12, 2013 trial date. Mr. Hodges seeks a continuance of the trial for at least 3 months

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and reports that he is not available on February 12, 2013 trial date.

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Mr. Hodges’ declaration does not address the Court’s previous determination that

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continuation of the trial would be highly prejudicial to Defendants. This action has been pending

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since August 3, 2009, and the last-minute efforts to forestall its resolution will prejudice not only

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Defendants, but also witnesses, security personnel, counsel and the Court. Furthermore, this is not

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an instance in which Plaintiff was recently appointed counsel, was left in pro per by counsel or is

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unable to represent himself. Indeed, Plaintiff has been prosecuting this action for more than two

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years without the assistance of counsel.

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Accordingly, it is HEREBY ORDERED as follows:

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Mr. Hodges’ request for a court order allowing him to appear on behalf of Plaintiff
is DENIED as moot. Mr. Hodges has entered his appearance in this action;

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The request to continue the trial is DENIED;
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3.The parties should be prepared to commence trial on February 12, 2013, at 8:30 a.m.
IT IS SO ORDERED.
Dated:
10c20k

February 8, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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