Serrano v. Rawers et al

Filing 72

ORDER SETTING Briefing Schedule on Heck Defense; Fourteen (14) Day Deadline signed by Magistrate Judge Michael J. Seng on 9/16/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSE L. SERRANO,

CASE NO. 1:11-cv-00399-MJS (PC)

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Plaintiff,

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ORDER SETTING BRIEFING SCHEDULE
ON HECK DEFENSE

v.
(ECF No. 61)
SCOTT RAWERS, et al.,
FOURTEEN (14) DAY DEADLINE
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 8.) This action

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proceeds on Plaintiff’s First Amended Complaint (ECF No. 6.) against Defendant Lucas

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for violation of Plaintiff’s Eighth Amendment rights. (ECF Nos. 11 & 12.)

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On May 4, 2015, the Court issued a second scheduling order, requiring the

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parties to submit pretrial statements and setting the matter for trial on November 12,

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2015. (ECF No. 48.) A pretrial conference is currently set for October 9, 2015. (ECF

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No. 71.)

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Upon review of Defendant’s pretrial statement, it appears that Defendant wishes
to assert the defense that Plaintiff’s suit is barred by Heck v. Humphrey, 512 U.S. 477
(1994) and should be dismissed on that basis
The Court is unable to determine, based on Defendant’s pretrial statement alone,
whether Heck applies. Additionally, the Court notes that Defendant failed to raise this
legal issue as an affirmative defense or by way of dispositive motion and the dispositive
motion deadline has passed.
Accordingly, it is HEREBY ORDERED THAT:
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brief on the following issues: a) Is Plaintiff’s suit barred by Heck, and b)

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Has Defendant waived the defense by failing to raise it earlier. In

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accordance with Local Rule 230(l), Plaintiff will have twenty-one (21) days

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Within fourteen (14) days of service of this Order, Defendant shall file a

to respond, and Defendant will have seven (7) days to reply; and
2.

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The pretrial conference date of October 9, 2015 and the trial date of
November 12, 2015 are vacated to allow time for the parties to brief this

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issue and the Court to rule.

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IT IS SO ORDERED.

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Dated:

September 16, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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