Asberry v. Biter

Filing 207

ORDER GRANTING Plaintiff's 194 Motion to Supplement Pretrial Statement and Ordering Amended Pretrial Statement in Thirty Days; ORDER Granting 197 Plaintiff's Motion to Clarify signed by Magistrate Judge Helena M. Barch-Kuchta on 03/30/2021.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,
v.

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C. RELEVANTE, et al.,
Defendants.

Case No. 1:16-cv-01741-NONE-HBK
ORDER GRANTING PLAINTIFF’S MOTION
TO SUPPLEMENT PRETRIAL STATEMENT
AND ORDERING AMENDED PRETRIAL
STATEMENT IN THIRTY DAYS
(Doc. No. 194)
ORDER GRANTING PLAINTIFF’S MOTION
TO CLARIFY
(Doc. No. 197)

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Plaintiff Tony Asberry, current state prisoner, initiated this action by filing a pro se civil

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rights complaint under 42 U.S.C. § 1983 on November 17, 2016. (Doc. No. 1). Plaintiff is

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proceeding on his amended complaint as screened. (See Doc. Nos. 14, 152). Pending review,

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inter alia, are: (1) plaintiff’s motion to supplement pretrial statement (Doc. No. 194); and (2)

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plaintiff’s motion to clarify status of the scheduling order (Doc. No. 197).

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1. Motion to Supplement Pretrial Statement

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On June 2, 2020, plaintiff moved to supplement his pretrial statement. (Doc. No. 194).

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Plaintiff seeks permission to file a supplement to his pretrial statement explaining that, as a pro se

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litigant, he was “unaware” of how to prepare a pretrial statement and believes he failed to include

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issues that are relevant to his claims. (Id.). It is not entirely clear whether plaintiff intended his

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motion to serve as his “supplement” because it includes various issues and law arguably

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pertaining to plaintiff’s claims. Defendants did not file an opposition to plaintiff’s motion, and

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the court independently finds no basis to reject plaintiff’s motion, especially considering the

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unforeseen delay in this case proceeding to trial. The court discourages piecemeal pleadings.

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Consequently, Plaintiff will be required to file an amended free-standing pretrial statement, as

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opposed to supplementing his current pretrial statemen. In order to expedite the filing of the

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amended pretrial statement, the court will direct the clerk to provide plaintiff with a one-time

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courtesy copy of his previous pretrial statement and this motion to supplement for his use in

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preparing the amended statement.

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2. Motion to Clarify

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On August 17, 2020, plaintiff filed a pleading titled “Motion to Clarify the Status of

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Plaintiff Trial Scheduling Order.” (Doc. No. 197). Plaintiff explains that he attempted to call in

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for the August 13, 2020 pretrial conference but was rebuffed by prison officials. (Id. at 2.)

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Plaintiff speculates the conference may have been rescheduled and seeks an update on “the status

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of his trial.” (Id. at 3.)

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The court’s Scheduling Order entered on April 12, 2018 set this matter for a pretrial

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conference for May 22, 2020, with trial following on July 7, 2020. (Doc. No. 119.) Due to the

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global coronavirus pandemic, the court issued General Order 618 on May 13, 2020, which

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continued all scheduled trials. The court accordingly reset the pretrial conference for August 13,

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2020 and the trial for September 22, 2020. (Doc. No. 191.) Because the pandemic has

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continued, those dates were again vacated until further order of court. (Doc. No. 196, 203). This

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matter is currently scheduled for a telephonic status conference on April 22, 2021. (Doc. No.

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203). All orders resetting these dates were communicated to plaintiff via mail, albeit perhaps not

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before the scheduled hearing date had passed. (See docket). Plaintiff’s motion to clarify the

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status of the scheduling order is effectively granted through this explanation.

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Accordingly, it is ORDERED:

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1.

Plaintiff’s motion to supplement pretrial statement (Doc. No. 194) is GRANTED.

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Plaintiff shall file a free-standing pleading captioned “Plaintiff Amended Pretrial

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Statement” no later than thirty (30) days after receipt of this Order. The

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Amended Pretrial Statement shall not refer back or incorporate by reference any

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part of Plaintiff’s original pretrial statement or supplement.

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3.

The Clerk of Court is directed to provide plaintiff with a courtesy copy of his

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pretrial statement (Doc. No. 186) and his motion to supplement (Doc. No. 194)

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with this Order.

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4.

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Defendants may file a free-standing Amended Pretrial Statement, if they choose,
no later than thirty (30) days after Plaintiff files his Amended Pretrial Statement.

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5.

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Plaintiff’s motion to clarify the pretrial statement (Doc. No. 197) is GRANTED to
the extent explained above.

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IT IS SO ORDERED.

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Dated:
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March 30, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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