Harris v. German et al

Filing 119

ORDER VACATING Pretrial Conference Scheduled for September 26, 2022 at 1:30 p.m. signed by Magistrate Judge Gary S. Austin on 9/12/2022. (Lawrence, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,

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Plaintiff,
vs.

1:15-cv-01462-ADA-GSA-PC
ORDER VACATING PRETRIAL
CONFERENCE SCHEDULED FOR
SEPTEMBER 26, 2022 AT 1:30 P.M.

GERMAN, et al.,
VACATED

Defendants.

Pretrial Conference
September 26, 2022 at 1:30 p.m.
Before District Judge Ana de Alba

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Devonte B. Harris (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds with

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Plaintiff’s First Amended Complaint filed on March 14, 2016, against defendants Correctional

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Officer (C/O) Humberto German, C/O Philip Holguin, and C/O R. Burnitzki (collectively,

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“Defendants”), for use of excessive force in violation of the Eighth Amendment; and against

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defendant C/O Philip Holguin for retaliation in violation of the First Amendment.1 (ECF No. 8.)

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On March 3, 2021, the court issued the Second Scheduling Order (“Order”), scheduling

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a Telephonic Trial Confirmation Hearing (hereinafter “Pretrial Conference”) for September 26,

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2022 at 1:30 p.m., before District Judge Dale A. Drozd. (ECF No. 110.) Pursuant to the Order,

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On January 17, 2018, the court dismissed all other claims and defendants from this action, based
on Plaintiff’s failure to state a claim. (ECF No. 31.)

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Plaintiff was required to file his pretrial statement by July 26, 2022, and Defendants were

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required to file their pretrial statement by August 22, 2022. (Id.) Jury trial for this case was not

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scheduled.

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The July 26, 2022 deadline expired yet Plaintiff has failed to file his pretrial statement.

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On August 5, 2022, the Court issued an order requiring Plaintiff to show cause within 20 days

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why this case should not be dismissed based on Plaintiff’s failure to file his pretrial statement.

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(ECF No. 114.) On August 22, 2022, Defendants filed their pretrial statement. (ECF No. 115.)

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On August 24, 2022, due to the appointment of District Judge Ana de Alba to the bench

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of the Eastern District of California, this case was reassigned from District Judge Dale A. Drozd

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to District Judge Ana de Alba. (ECF No. 116.)

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On August 31, 2022, Plaintiff filed a motion for extension of time to respond to the

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August 5, 2022 order to show cause. (ECF No. 117.) Plaintiff declares that he did not have

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access to the law library before the July 26, 2022 deadline to file his pretrial statement expired.

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(Declaration of Devonte Harris, ECF No. 117 at 2 ¶ 2.) On September 2, 2022, Defendants

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submitted the Declaration of Litigation Coordinator P. Williams, providing evidence that

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Plaintiff had attended the law library at Corcoran State Prison on nine dates between June 9, 2022

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and August 15, 2022. (ECF No. 118 at 2 ¶ 4 & Exhibit A.) As of the date of this order, Plaintiff

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has not filed a reply.

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Due to the near approach of the Pretrial Conference on September 26, 2022 at 1:30 p.m.,

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and Plaintiff’s failure to file his pretrial statement, the Court finds good cause to vacate the

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Pretrial Conference, to be re-scheduled at a later time if needed.

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Accordingly, the court HEREBY ORDERS that the Pretrial Conference scheduled for
September 26, 2022, at 1:30 p.m. before District Judge Ana de Alba is VACATED.

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IT IS SO ORDERED.
Dated:

September 12, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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