Garcia v. Clark, et al.

Filing 89

ORDER Discharging Order to Show Cause 86 ; ORDER Vacating Second Scheduling Order 74 ; ORDER Requiring Plaintiff to File Declaration Regarding Plaintiff's Ability to Present Case, signed by District Judge Lawrence J. O'Neill on 2/8/13. 21-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WILLIAM P. GARCIA,

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CASE NO. 1:10-cv-00447-LJO-DLB PC

Plaintiff,

ORDER DISCHARGING ORDER TO SHOW
CAUSE (ECF No. 86)

v.
ORDER VACATING SECOND
SCHEDULING ORDER (ECF No. 74)

KEN CLARK, et al.,
Defendants.

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/

ORDER REQUIRING PLAINTIFF TO FILE
DECLARATION REGARDING
PLAINTIFF’S ABILITY TO PRESENT CASE
(ECF No. 88)

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Plaintiff William P. Garcia (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se in this civil action

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pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended complaint, filed

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May 24, 2010, against Defendants K. Allison, F. Diaz, D. Ibarra, S. Knight, C. Palmer, R.

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Santos, R. Tolson, K. Turner, and C. Walters for violation of the First Amendment, the Equal

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Protection Clause of the Fourteenth Amendment, and the Religious Land Use and

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Institutionalized Persons Act of 2000.

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On August 24, 2012, United States Magistrate Judge Dennis Beck issued a Second

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Scheduling Order. A telephonic trial confirmation hearing was scheduled for February 7, 2013 at

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8:30 a.m. Plaintiff was provided until January 17, 2013 by which to file his pretrial statement in

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this matter. Plaintiff did not comply. On January 29, 2013, the Court issued an order to show

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cause why this action should not be dismissed for failure to obey a court order. On February 7,

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2013, Plaintiff filed his response. Accordingly, the order to show cause is discharged.

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Plaintiff declares the following. Plaintiff contends that Plaintiff suffers from severe nerve
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damage. He was receiving gabapentin/neurontin until a year ago when it was discontinued

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because other prisoners engaged in illegal sale of the drug. Plaintiff has been in constant pain

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since that time. He eventually received methadone, which helps with his pain, but does not fully

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alleviate it. The severe pain goes from his body to his brain and caused him to not have “clear

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thoughts.” Plaintiff received the second scheduling order, but did not even realize that he had

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received it, and put it away. Plaintiff continues to suffer from the severe nerve pain. Plaintiff

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calls his failure to file a pretrial statement an inadvertent mistake and asks for the Court to grant

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him leave to comply with the order.

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The Court finds good cause has been presented, and this action will proceed. The Court

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will direct the United States Magistrate Judge to issue a new Second Scheduling Order. Based

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on Plaintiff’s representations concerning his health issues, the Court will also require Plaintiff to

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submit a declaration concerning Plaintiff’s ability to adequately litigate this action. This

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declaration should be entitled “Declaration Regarding Ability to Present Case.” This declaration

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will be sealed.

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Accordingly, it is HEREBY ORDERED that

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The order to show cause, issued January 29, 2013, is discharged;

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The Second Scheduling Order, issued August 24, 2012, is vacated. The United

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States Magistrate Judge will issue an amended Second Scheduling Order;

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3.

Plaintiff is required to file within twenty-one (21) days from the date of service

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of this order a declaration concerning his ability to litigate this case. This

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declaration will be sealed.

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IT IS SO ORDERED.

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Dated:

February 8, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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