Mix v. King

Filing 91

ORDER DENYING Plaintiff's 89 Request to Reset Scheduling; ORDER DENYING Plaintiff's 90 Motion for Court to Accept Exhibit signed by Magistrate Judge Michael J. Seng on 7/22/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT D. MIX,

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Plaintiff,

CASE NO. 1:13-cv-00823-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S
REQUEST TO RESET SCHEDULING

v.
(ECF No. 89.)
AUDREY KING, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION
FOR COURT TO ACCEPT EXHIBIT

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(ECF No. 90)

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

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendants Cunningham and Saloum on Plaintiff’s Fourteenth Amendment failure to

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protect claims. Trial is set for January 10, 2017.

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On June 30, 2016, Plaintiff filed a motion asking the Court to “reset” the

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scheduling order to allow Plaintiff to “submit new declarations and evidence he wishes to

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present at trial.” (ECF No. 89.) Defendants filed no opposition and the time for doing so

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has passed. The matter is submitted.

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Then on July 11, 2016, Plaintiff filed a motion requesting that the Court accept for

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filing a declaration signed by a fellow detainee at Coalinga State Hospital. (ECF No. 90.)

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Although the time has not run for Defendants to file an opposition, the Court finds this

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motion capable of resolution without a response from Defendants on the same ground

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as Plaintiff’s June 30, 2016 motion.

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Plaintiff’s motions will be denied. The Court cannot serve as a repository for the

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parties’ evidence. The parties may not file evidence with the court until the course of

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litigation brings the evidence into question, for example, on a motion for summary

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judgment or at trial. The District Judge will hold a pretrial conference in this case on

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November 4, 2016 and, in conjunction with that conference, will issue a pretrial order

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advising Plaintiff of the date by which he must submit his exhibits to the Court.

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To the extent Plaintiff wishes to proffer evidence not identified in his prior pretrial

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statement (ECF No. 52), he must file an amended pretrial statement as directed in the

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Court’s June 6, 2016 scheduling order (ECF No. 87). To the extent Plaintiff intends to

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seek the attendance of additional incarcerated or unincarcerated witnesses, he must

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follow the instructions in the June 6, 2016 order.

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Defendants will have an opportunity to object to Plaintiff’s proposed evidence prior

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to trial and may object to Plaintiff’s late disclosure of evidence and witnesses. Plaintiff is

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advised to submit his proposed evidence to Defendants at the earliest opportunity.

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Plaintiff need not, and indeed should not, submit such evidence to the Court unless

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and until directed to do so.

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Lastly, the Court cautions Plaintiff that the declaration submitted with his motion

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does not appear to contain relevant or admissible evidence. The District Judge in this

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action will make an ultimate determination regarding admissibility of evidence proffered

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at trial. Nevertheless, Plaintiff is here put on notice that the declaration he submitted

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bears no relation to any fact of consequence in this action and appears designed

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primarily to disparage Defendant Saloum’s character and qualifications. Such evidence

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generally is inadmissible. Fed. R. Evid. 404(a)(1). Plaintiff may be better served by

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focusing his attention on the disputed issue of whether Defendants actually knew

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Plaintiff was at risk of being assaulted by a fellow detainee.

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IT IS SO ORDERED.
Dated:

July 22, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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