Mix v. King

Filing 93

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION 92 ; CLERK TO RETURN COMPACT DISC LODGED AUGUST 31, 2016 TO PLAINTIFF AND CLERK TO SEND PLAINTIFF COPIES OF ECF DOCUMENT NOS. 35 AND 87 signed by District Judge Anthony W. Ishii on 9/14/2016. (Amended Pretrial Statement Filing Deadline: 10/3/2016). (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT D. MIX, 11 Plaintiff, 12 13 CASE NO. 1:13-cv-00823-AWI-MJS (PC) ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION v. (ECF No. 92.) AUDREY KING, et al., 14 Defendants. 15 16 CLERK TO RETURN COMPACT DISC LODGED AUGUST 31, 2016 TO PLAINTIFF CLERK TO SEND PLAINTIFF COPIES OF ECF Nos. 35 AND 87 17 FOURTEEN (14) DAY DEADLINE FOR FILING AMENDED PRETRIAL STATEMENT 18 19 20 21 22 23 24 25 26 27 28 I. PROCEDURAL HISTORY Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Cunningham and Saloum on Plaintiff’s Fourteenth Amendment failure to protect claims. The allegations arise out of an April 27, 2013 incident in which Plaintiff was attacked by Mr. Jackson, a fellow detainee at Coalinga State Hospital. Trial is set for January 10, 2017. 1 On June 30, 2016, Plaintiff filed a motion asking the Court to “reset” the 2 scheduling order to allow Plaintiff to “submit new declarations and evidence he wishes to 3 present at trial.” (ECF No. 89.) The motion was denied by the assigned Magistrate Judge 4 on July 22, 2016. (ECF No. 91.) Before the Court is Plaintiff’s August 31, 2016 motion for 5 reconsideration. (ECF No. 92.) Although Defendants have not had an opportunity to 6 respond to the motion, the Court finds the motion capable of resolution absent input from 7 Defendants. 8 II. LEGAL STANDARD 9 Federal Rule of Civil Procedure 72(a) allows parties to file objections to 10 nondispositive orders decided by a Magistrate Judge. “The district judge in the case 11 must consider timely objections and modify or set aside any part of the order that is 12 clearly erroneous or is contrary to law.” Id. 13 Similarly, Local Rule 303(c) allows parties to seek reconsideration by a District 14 Judge of a Magistrate Judge’s pretrial rulings. Local Rule 303(c). The assigned District 15 Judge shall review all such requests for reconsideration under the "clearly erroneous or 16 contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A). Local Rule 303(f) (citing 17 Fed. R. Civ. P. 72(a)). 18 III. MAGISTRATE JUDGE’S ORDER 19 The Magistrate Judge declined to “reset” the scheduling order on two grounds. 20 First, the Magistrate Judge noted that the Court cannot serve as a repository for the 21 parties’ evidence and denied Plaintiff’s request to file evidence with the Court in advance 22 of any pretrial deadlines. Second, the Magistrate Judge noted that Plaintiff had been 23 directed to describe any additional evidence he wished to present in an amended pretrial 24 statement to be filed by September 9, 2016. Accordingly, Plaintiff already had been 25 afforded a mechanism to resolve the concerns raised in his motion. 26 // 27 // 28 2 1 2 3 IV. MOTION FOR RECONSIDERATION Plaintiff’s motion does not describe any error in the Magistrate Judge’s order. This alone is basis for denying the motion for reconsideration. 4 Additionally, Plaintiff does not request any specific relief. It is not apparent what 5 Plaintiff hopes to accomplish through his motion. He does not request an extension of 6 time to file his amended pretrial statement, although the deadline for doing so passed on 7 September 9, 2016. Nor does he provide cause for such an extension. He asks only to 8 be allowed to present new, “relevant information.” As the Magistrate Judge correctly 9 stated, Plaintiff’s opportunity to present evidence is at trial. There is presently no basis 10 11 12 for Plaintiff to submit information or evidence to the Court in support of his claims. The Court will briefly address the “extraordinary circumstances” Plaintiff sets out in his motion. 13 Plaintiff first contends that a staff person at Coalinga State Hospital (“CSH”) 14 informed Plaintiff that Plaintiff is receiving substandard health care in retaliation for filing 15 the instant action. However, said staff person was unwilling to testify until after his 16 retirement, which apparently occurred in August 2016. The Court notes that the instant 17 action does not involve claims of retaliation or inadequate medical care. If Plaintiff 18 wishes to pursue such allegations, he must do so in a separate action. To the extent 19 Plaintiff claims that this staff person is willing to testify as to a matter relevant to this 20 action, Plaintiff is advised, again, that he must identify this individual as a witness in his 21 pretrial statement and, to the extent the individual is unwilling to testify voluntarily, must 22 pay the statutory witness fees. Plaintiff is again referred to the Court’s October 6, 2015 23 and June 6, 2016 scheduling orders for further instruction in that regard. 24 Plaintiff next contends that another detainee at CSH made secretive recordings of 25 CSH staff from 2012 to 2015. These recordings were confiscated but then returned to 26 the patient. In such recordings, an unnamed Psych Tech reportedly states that CSH staff 27 is forbidden from taking the side of a detainee against a staff member. Plaintiff has had 28 3 1 difficulty obtaining further information because he and the detainee in possession of the 2 recordings are unfriendly. Plaintiff does not state the relevance of this information to this 3 action or to his motion for reconsideration. Such recordings likely are inadmissible in this 4 action; nevertheless, to the extent Plaintiff wishes to admit them at trial, he must list them 5 in his pretrial statement. Plaintiff again is admonished not to submit evidence to the 6 Court until ordered to do so. The CD of audio recordings submitted with the motion will 7 be returned to Plaintiff. 8 Plaintiff’s third contention is that Psych Tech Christina Garcia has information 9 regarding the assault and Mr. Jackson, but will not testify unless subpoenaed to do so. 10 Plaintiff disagrees with the requirement that he pay statutory witness fees for her 11 presence. Plaintiff again is referred to the October 6, 2015 and June 6, 2016 scheduling 12 orders. The Court has no means to compel Ms. Garcia’s presence absent Plaintiff’s 13 payment of the applicable witness fees. Furthermore, to the extent Plaintiff wishes to 14 disparage the credentials or credibility of the Psych Techs that Defendants wish to call 15 as witnesses, Plaintiff may attempt to do so at trial. Such matters are not properly before 16 the Court at this time. 17 Plaintiff next claims that his social worker and psychologist wrote negative reports 18 about Plaintiff in retaliation for filing the instant action. Again, Plaintiff is reminded that 19 this action does not proceed on a claim of retaliation. If Plaintiff wishes to pursue such 20 allegations, he must do so in a separate action. 21 Plaintiff’s next argument is difficult to discern. He appears to assert a conflict of 22 interest on the part of the Attorney General’s Office. To the extent such conflict is based 23 on the Attorney General’s handling of complaints regarding medical or elder abuse, 24 Plaintiff again is reminded that this action proceeds on a single claim of failure to protect 25 and does not involve any state law claims. 26 Plaintiff next complains of delays relating to his receipt of legal mail. He states 27 that he did not receive the Magistrate Judge’s order denying his motion to “reset” 28 4 1 deadlines until August 25, 2016. However, that motion did not specifically request an 2 extension of time to file a pretrial statement, and it therefore is unclear how such delay 3 interfered with Plaintiff’s ability to timely file his amended pretrial statement. 4 Lastly, Plaintiff appears to believe he has missed a July court deadline. He has 5 not. 6 V. CONCLUSION 7 For the reasons stated, Plaintiff’s motion for reconsideration will be denied. 8 Plaintiff is once again admonished not to submit evidence to the Court absent further 9 order. 10 The Court will provide Plaintiff one final opportunity to file an amended pretrial 11 statement. To the extent Plaintiff wishes to introduce at trial evidence or witness 12 testimony not included in his prior pretrial statement, he must include such in his 13 amended pretrial statement. He must move for the attendance of his anticipated 14 witnesses by following the procedures set out in the Court’s October 6, 2015 order. The 15 Court will direct the Clerk of Court to send Plaintiff copies of its October 6, 2015 and 16 June 6, 2016 scheduling orders for Plaintiff’s reference. 17 If difficulties with the legal mail system prevent Plaintiff from filing a pretrial 18 statement in the time allotted, Plaintiff may move for an extension of time. Such a motion 19 must be supported by a showing of good cause. 20 If Plaintiff fails to file an amended pretrial statement or any further witness motions 21 as required in this order, he will be limited to presenting evidence and witnesses 22 described in his February 1, 2016 pretrial statement. 23 VI. ORDER 24 Based on the foregoing, it is HEREBY ORDERED that: 25 1. Plaintiff’s motion for reconsideration (ECF No. 92) is DENIED; 26 2. Plaintiff shall file an amended pretrial statement within fourteen days of the 27 date of this order; 28 5 1 2 3 3. The Clerk of Court shall return to Plaintiff the compact disc submitted on August 31, 2016; and 4. The Clerk of Court shall send Plaintiff copies of ECF Nos. 35 and 87. 4 5 6 IT IS SO ORDERED. Dated: September 14, 2016 SENIOR DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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