Lopez v. Peterson, et al

Filing 451

STIPULATION and ORDER signed by Magistrate Judge Edmund F. Brennan on 2/22/16 ORDERING that the status conference currently scheduled for Wednesday, March 2, 2016, be moved to Wednesday, March 30 April 6, 2016, for the purpose of facilitating plaintiff's counsel's clearance at PBSP and visitation with his client. (Dillon, M)

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ROBERT NAVARRO
Attorney at Law
State Bar No. 128461
1295 North Wishon Avenue, Suite 207
Fresno, California 93728
tel: [phone] fax: [phone]
[e-mail]

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Attorneys for Andrew Rick Lopez

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA,

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SACRAMENTO DIVISION

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ANDREW R. LOPEZ,

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Plaintiff,

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No. 2:98-cv-2111-MCE-EFB P

v.

STIPULATION AND [PROPOSED]
ORDER TO RESCHEDULE
STATUS CONFERENCE

D. PETERSON, et al.,

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Defendants.

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Under Federal Rules of Civil Procedure 16(b)(4) and Local Rule 143, the parties,
through their counsel of record, agree to and request a continuance of the
status conference currently scheduled for Wednesday, March 2, 2016, to
Wednesday, March 30, 2016.

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plaintiff Andrew Rick Lopez was unexpectedly transferred from his 15 year placement
at Corcoran State Prison to Pelican Bay State Prison (PBSP) at the conclusion of his trial

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Good cause exists to grant this stipulation because

[Proposed] Order

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in Lopez v. Cook, 1:03-cv-01605 KJM EFB, late last month while he was still placed

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temporarily at California State Prison, Sacramento, as an “out to court” inmate. While

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he has been transferred to PBSP, his legal property has not reached him yet. Secondly,
plaintiff’s counsel was unable to visit his client on Tuesday, February 16, as had been
planned, because Legal Visiting at PBSP states it cannot clear counsel for legal visitation

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until a technical discrepancy on his background check is resolved, even though counsel

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is currently cleared at other California prisons, including Corcoran.
A scheduling order may be modified only upon a showing of good cause and by

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leave of Court.

Fed.R.Civ.P. 6(b)(1)(A), 16(b)(4); see, e.g., Johnson v. Mam-moth

Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in

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ruling on such a motion). In considering whether a party moving for a schedule

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modification has good cause, the Court primarily focuses on the diligence of the party

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seeking the modification. Johnson, 975 F.2d at 609 (citing Fed.R.Civ.P. 16 advisory
committee’s notes of 1983 amendment). “The district court may modify the pretrial
schedule ‘if it cannot reasonably be met despite the diligence of the party seeking the

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amendment.’” Id. (quoting Fed.R.Civ.P. 16 advisory committee notes of 1983 amend-

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ment).
The clearance issue has to do with a misdemeanor arrest of counsel, Robert

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Navarro, in October 2011, as part of a civil disobedience protest organized by Occupy
Fresno. Approximately 109 misdemeanor arrests were made during a six week period
during the Occupy Fresno protest. Counsel was the lead attorney for Occupy Fresno,

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which filed a civil rights lawsuit against Fresno County. The lawsuit was settled in

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2012. As part of the settlement in the case, the parties agreed that the Fresno County

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District Attorney would not prosecute any of the Occupy Fresno arrests, including
mine.

The settlement was approved by the Hon. Charles R. Breyer (sitting by

assignment). See, Occupy Fresno v. County of Fresno, 1:11-cv-01894, Doc. 121, p. 7, ¶ F

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[Proposed] Order

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[approved settlement agreement, “Non-prosecution” clause].

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ever occurred regarding counsel’s misdemeanor citation.

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Thus, no prosecution

Attorney Visiting at PBSP has informed counsel that even though they
understand that the civil case settlement resolved the misdemeanor arrest, the criminal
records background check shows that there was an arrest in 2011, but it does not

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indicate any disposition. Counsel has been instructed to have the disposition supplied

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to the California Department of Justice so that the background check will show that

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matter was “dismissed” or disposed of in some manner without conviction.
Counsel has followed all the suggestions made by PBSP, including inquiries to
the Fresno County Sheriff’s Office, the federal court (including an email directly to

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Judge Breyer’s chambers), and with the Fresno County District Attorney’s Office. None

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of these contacts have resulted in resolving the matter. Counsel, with the assistance of

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defendants’ counsel, has contacted persons in the California Department of Justice who
may be able help counsel to satisfy the request of PBSP. Counsel is currently awaiting a
response from these contacts.

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Counsel has reviewed the Peterson litigation and is prepared to discuss the status

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of the case going forward with plaintiff, however, for the moment he has no access to

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his client. Counsel was informed by PBSP that even confidential telephone calls cannot
be permitted until the clearance issue is resolved.
Consequently, the parties stipulate to a 28 day continuance of the status
conference in this case in order to allow time for counsel’s clearance and an opportunity
to meet and confer with his client regarding this case.
IT IS SO STIPULATED.
Dated:

February 17, 2016
/s/Robert Navarro
ROBERT NAVARRO
Attorneys for Andrew Rick Lopez

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[Proposed] Order

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Dated:

February 17, 2016

KAMALA D. HARRIS
Attorney General of California
CHRISTOPHER J. BECKER
Supervising Deputy Attorney General

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By:

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/s/Diana Esquivel
DIANA ESQUIVEL
Deputy Attorney General
Attorneys for Defendants

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ORDER

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Based on the parties’ stipulation and good cause appearing, it is ordered that:
The status conference currently scheduled for Wednesday, March 2, 2016, be
moved to Wednesday, March 30 April 6, 2016, for the purpose of facilitating plaintiff’s
counsel’s clearance at PBSP and visitation with his client.
IT IS SO ORDERED.
Dated: February 22, 2016.

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[Proposed] Order