Ricks v. Kamena et al

Filing 64

ORDER to SHOW CAUSE Regarding Defendant's Failure to File a Pretrial Statement signed by Magistrate Judge Barbara A. McAuliffe on 04/23/2019. Seven-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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Plaintiff,
v.
KAMENA,

Case No. 1:15-cv-00715-DAD-BAM (PC)
ORDER TO SHOW CAUSE REGARDING
DEFENDANT’S FAILURE TO FILE A
PRETRIAL STATEMENT
(ECF No. 55)

Defendant.

SEVEN (7) DAY DEADLINE

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Plaintiff Scott K. Ricks (“Plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds

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against Defendant Kamena for failure to protect and deliberate indifference. This matter is set for

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a telephonic trial confirmation hearing on May 6, 2019, and a jury trial on July 9, 2019.

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On September 26, 2018, the Court issued a second scheduling order directing Plaintiff to

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file his pretrial statement on or before April 8, 2019, and directing Defendant to file his pretrial

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statement on or before April 22, 2019. (ECF No. 55.) This matter was then set for a settlement

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conference before Magistrate Judge Jennifer L. Thurston on March 4, 2019. (ECF No. 57.) The

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case did not settle, and therefore the deadlines set in the Court’s second scheduling order

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remained in effect. (ECF No. 61.)

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The deadline for Plaintiff’s pretrial statement and motion for attendance of incarcerated
witnesses expired, and Plaintiff failed to comply with the Court’s scheduling order or to otherwise
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communicate with the Court. Accordingly, on April 18, 2019, the Court issued an order for

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Plaintiff to show cause why this action should not be dismissed for failure to comply with a court

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order and for failure to prosecute. (ECF No. 62.) Plaintiff’s response is due on or before May 6,

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2019. (Id.)

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On April 22, 2019, in lieu of filing a pretrial statement, Defendant filed a motion to

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dismiss due to Plaintiff’s failure to prosecute. (ECF No. 63.) As Defendant acknowledges, the

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Court’s April 18, 2019 order to show cause did not expressly discharge Defendant’s obligation to

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file a pretrial statement by April 22, 2019. (Id. at 2, n.1.) Defendant argues that he will be

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“extraordinarily prejudiced” if he is required to file a pretrial statement, given Plaintiff’s failure to

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do so. (Id. at 1.)
The Court disagrees. While Defendant may be prejudiced to some degree in his trial

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preparation, Plaintiff’s failure to file a pretrial statement does not completely preclude him from

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preparing and filing his own pretrial statement, to the best of his abilities. As Defendant has not

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requested an extension of time to file his pretrial statement, and the May 6, 2019 telephonic trial

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confirmation hearing remains on calendar, the Court finds it would be beneficial for Defendant to

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submit the required pretrial statement.

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Accordingly, Defendant is HEREBY ORDERED to show cause by written response

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regarding Defendant’s failure to obey the Court’s scheduling order, or to submit his pretrial

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statement. Defendant’s response or pretrial statement is due within seven (7) days from the date

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of service of this order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 23, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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