Shepard v. Bass et al

Filing 96

ORDER Vacating November 27, 2012, Settlement Conference and Directing the Clerk's Office to Forward a Consent/Decline Form to Defendant signed by Magistrate Judge Barbara A. McAuliffe on 11/06/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LAMONT SHEPARD,

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CASE NO. 1:10-cv-00754-LJO-BAM PC

Plaintiff,

ORDER VACATING NOVEMBER 27, 2012,
S E T T LE M E N T C O N F E R E N C E A N D
DIRECTING THE CLERK’S OFFICE TO
FORWARD A CONSENT /DECLINE FORM TO
DEFENDANT

v.
BASS, et al.,
Defendants.

FIFTEEN DAY DEADLINE
/

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Plaintiff Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following resolution of the parties’

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cross-motions for summary judgment, this action is now proceeding on Plaintiff’s complaint, filed

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April 30, 2010, against Defendant Bass for excessive force in violation of the Eighth Amendment.

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(ECF No. 62.) This action is currently set for a settlement conference on November 27, 2012, and

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jury trial on December 11, 2012.

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The parties have submitted confidential settlement statements which have been reviewed by

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the undersigned. Based upon the confidential settlement statements, the Court finds that this action

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is not amendable to settlement and it would not be beneficial for the parties to incur the costs and

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expenditure of time to appear for the settlement conference. Accordingly, the settlement conference

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set for November 27, 2012, at 9:30 a.m. in Courtroom 8 shall be vacated.

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This action is set for jury trial on December 11, 2012, at 8:30 a.m., before the Hon. Lawrence

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J. O’Neill. A United States Magistrate Judge is available to conduct trials, including entry of final

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judgment, pursuant to 28 U.S.C. § 28 U.S.C. 636(c), Federal Rule of Civil Procedure 73, and Local
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Rule 73-305. Any appeal from a judgment entered by a United States Magistrate Judge is taken

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directly to the United States Court of Appeal for the Ninth Circuit. Because of the extraordinarily

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high case load in this district, this court has United States Magistrate Judges conduct trials in civil

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rights actions concerning prison conditions whenever possible. Having a Magistrate Judge preside

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over the trial makes it far more likely a case will proceed on the scheduled trial date, and the trial

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will not be delayed by other matters.

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Plaintiff consented to the jurisdiction of the Magistrate Judge on May 10, 2010. (ECF No.

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5.) Defendant declined jurisdiction on May 6, 2011. (ECF No. 26.) The court shall direct the Clerk

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of the Court to provide Defendant with a consent/decline form. Within fifteen days, Defendant shall

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inform the court whether he consents to or declines Magistrate Judge Jurisdiction by filling out the

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form and returning it to the court. While consenting to Magistrate Judge jurisdiction will most likely

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expedite resolution of this action, Defendant is hereby advised that no adverse substantive

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consequences will result if he withholds consent.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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The settlement conference set for November 27, 2012, at 9:30 a.m. in Courtroom 8
is VACATED;

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2.

The Clerk’s Office is directed to send a consent/decline form to Defendant; and

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3.

Within fifteen days from the date of service of this order, Defendant shall return the

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consent/decline form.
IT IS SO ORDERED.
Dated:
10c20k

November 6, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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