Brown v. Harris et al

Filing 100

ORDER GRANTING Defendant Harris's 99 Motion to Modify Amended Second Scheduling Order and Ex Parte Application to Hear Motion on Shortened Time signed by Magistrate Judge Barbara A. McAuliffe on 1/9/2017. Plaintiff's Amended Pretrial Statement Due: January 20, 2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELL BROWN, 12 13 14 15 16 17 Plaintiff, v. R. HARRIS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:12-cv-01472-BAM (PC) ORDER GRANTING DEFENDANT HARRIS’S MOTION TO MODIFY AMENDED SECOND SCHEDULING ORDER AND EX PARTE APPLICATION TO HEAR MOTION ON SHORTENED TIME Plaintiff’s Amended Pretrial Statement Due: January 20, 2017 18 19 Plaintiff Cornell Brown is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff’s claims against 21 Defendant Correctional Officer Harris for excessive force in violation of the Eighth Amendment. All 22 parties have consented to magistrate judge jurisdiction. (ECF Nos. 5, 81.) 23 Under the Amended Second Scheduling Order, this matter is set for a jury trial beginning on 24 March 28, 2017, and a telephonic pretrial hearing on January 18, 2017. (ECF No. 96.) Plaintiff was 25 required to serve and file a pretrial statement in accordance with that Order by January 3, 2017, and 26 Defendant’s pretrial statement is due by January 10, 2017. 27 Currently before the Court is Defendant’s motion to amend the Amended Second Scheduling 28 Order to vacate the current pretrial statement deadlines. (ECF No. 99.) Defendant argues that the 1 1 Plaintiff’s pretrial statement is so inadequate that Defendant cannot properly prepare a pretrial 2 statement in response, including because Plaintiff left several matters for his counsel to determine, 3 although no counsel of record has appeared on Plaintiff’s behalf. Therefore, Defendant asserts that 4 Plaintiff should be ordered to file a statement that adequately complies with Local Rule 281(b), and 5 Defendant’s statement should be due ten days after Plaintiff files his amended pretrial statement. 6 Defendant suggests the January 18, 2017 pretrial hearing remain on calendar to confirm Plaintiff’s 7 readiness for trial and the status of his representation, and that the instant motion be ruled upon prior 8 to that hearing.1 9 The Court has reviewed Plaintiff’s pretrial statement and finds that it does not comply with 10 Local Rule 281 in several critical respects. As Defendant notes, Plaintiff’s pretrial statement is only 11 about four pages long, and his filing otherwise mostly consists of attachments that appear to be some 12 portion of Plaintiff’s proposed trial exhibits. Plaintiff’s undisputed and disputed fact descriptions each 13 consist of one sentence, and the Court is therefore not certain whether these sections are complete. No 14 anticipated disputed evidentiary issues are noted. (ECF No. 98.) 15 More importantly, Plaintiff does not list his expected witnesses, and instead states that he has 16 obtained legal counsel who will take over “all remaining matters.” (Id. at 3.) Although Plaintiff 17 indicates that he has obtained counsel as of December 27, 2016 and gives a name and phone number 18 for counsel, no counsel has yet filed any appearance in this action for Plaintiff. Nor does the 19 anticipated appearance of counsel excuse Plaintiff from his obligation to comply with this Court’s 20 orders and the local rules. Plaintiff also refers to what his anticipated counsel “will decide” instead of 21 setting forth his positions on any stipulations, further discovery or motions (other than to state that he 22 anticipates a motion to extend the time for trial), whether he will request any amendments, any 23 anticipated settlement negotiations or need for a settlement conference, and whether he will seek an 24 impartial expert witness or witnesses. (Id. at 3-4.) The incompleteness of Plaintiff’s pretrial statement 25 prevents Defendant and the Court from adequately preparing for trial in this matter. 26 Defendant also suggests that Plaintiff’s pretrial statement was filed and served late, as it was not entered onto the docket until January 6, 2017. (ECF No. 98). However, the proof of service attached to Plaintiff’s pretrial statement indicates it was provided to prison officials for mailing to the Court and defense counsel on January 2, 2017, which was within the applicable deadline. (Id. at 17-18.) 1 27 28 2 1 Good cause appearing, Defendant’s motion to modify the amended second scheduling order 2 and ex parte application to hear the motion on shortened time (ECF No. 99), are GRANTED. The 3 pretrial statement deadlines set forth in the Court’s amended second scheduling order are vacated, and 4 the Court HEREBY ORDERS as follows: 5 6 7 8 9 10 1. Plaintiff shall file and serve an amended pretrial statement that adequately complies with Local Rule 281(b) on or before January 20, 2017; 2. Defendant shall file a pretrial statement within ten (10) days after Plaintiff files and serves his amended pretrial statement; and 3. Plaintiff is warned that his failure to comply with this order shall result in dismissal of this action. 11 12 13 14 IT IS SO ORDERED. Dated: /s/ Barbara January 9, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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