Warner v. Cate et al

Filing 152

ORDER: (1) Directing Clerk of Court to Resend Local Rule 281; (2) Directing Plaintiff to File Pretrial Statement Within Seven (7) Days of This Order; (3) Directing Defendants to File Pretrial Statement on or Before January 20, 2017, signed by Magistrate Judge Michael J. Seng on 1/5/2017. (Attachments: # 1 Local Rule 281)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,

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v.

CASE No. 1:12-cv-01146-MJS (PC)
ORDER:
(1) DIRECTING CLERK OF COURT TO
RESEND LOCAL RULE 281

M. CATE, et al.,

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Defendants.

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(2) DIRECTING PLAINTIFF TO FILE
PRETRIAL STATEMENT WITHIN
SEVEN (7) DAYS OF THIS ORDER
(3) DIRECTING DEFENDANTS TO FILE
PRETRIAL STATEMENT ON OR
BEFORE JANUARY 20, 2017

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SEVEN (7) DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s
first amended complaint against Defendants Walker, Davis, Prokop1, Spralding, and

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Formerly Defendant D. McGaha.

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Fellows for failure to protect in violation the Eighth Amendment to the United States

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Constitution.

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Trial in this case is set for March 29, 2017. (ECF No. 144.) Plaintiff’s Local Rule

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281 pretrial statement was due on December 8, 2016. (ECF No. 113.) It was not

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received by that date. On December 19, 2016, the Court ordered Plaintiff to show cause

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why his case should not be dismissed for failure to obey its order as to the pretrial

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statement. (ECF No. 145.) On January 4, 2017, Plaintiff’s responded that he was unable

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to prepare a pretrial statement because of his lack of legal training, difficulty obtaining

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assistance within his institution, and inability to find a copy of Local rule 281. (ECF No.

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151.)

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Plaintiff’s response is not well-taken. The Court previously sent Plaintiff a copy of

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Local Rule 281. (See ECF No. 113.) Plaintiff’s pro se does not excuse him from

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complying with Court orders and deadlines.

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Nevertheless, the Court would prefer to have Plaintiff’s claims heard on the merits

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rather than disposed based on Plaintiff’s failure to comply with procedural requirements.

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Accordingly, the Court will give Plaintiff one final extended opportunity to comply. He
will have seven days from the date of this order to prepare and submit a pretrial
statement in full compliance with Local Rule 281. (The Clerk of Court will be directed to
resend another copy of that rule to Plaintiff.) A repeat failure to comply with this Order
and its deadline will result in Plaintiff having to proceed to trial without witnesses or
exhibits (as same must be timely disclosed in a pretrial statement) and possibly cause
dismissal of the case.
Defendants will now be directed to file their own pretrial statement on or before

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January 20, 2017, regardless of whether Plaintiff timely files his. The telephonic trial
confirmation hearing set for February 2, 2017 will proceed as scheduled. (See ECF No.

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113.)
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Accordingly, it is HEREBY ORDERED THAT:
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1.

The Clerk of Court shall send Plaintiff a copy of Local Rule 281.
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2.

Within seven days of service of this Order, Plaintiff shall file his pretrial

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statement. Failure to comply with this order will result in Plaintiff

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having to proceed to trial without witnesses or exhibits and possibly

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in dismissal of his case.

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3.

Defendants shall file their pretrial statement on or before January 20, 2017.

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4.

No further extensions will be granted.

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IT IS SO ORDERED.
Dated:

January 5, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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