McNeal v. Evert, et al

Filing 225

ORDER signed by Judge Garland E. Burrell, Jr. on 7/7/2015 ORDERING that Defendant's 221 request to modify the Second Supplement to Pretrial Order is DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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No.

2:05-cv-00441-GEB-EFB

Plaintiff,
v.

ORDER DENYING DEFENDANTS’
REQUEST TO MODIFY THE SECOND
SUPPLEMENT TO PRETRIAL ORDER

LOCKIE, ERVIN, CHATHAM, and
VAN LEER,
Defendants.

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On June 18, 2015, Defendants filed an “Objection to the

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Court’s

Second

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request the order “be modified” to state “that the remaining

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claims asserted against the Defendants at trial are as follows:

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1) Excessive force in violation of the Eighth Amendment (against

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Defendants Leckie and Ervin); [and] 2) Failure to intervene to

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prevent the use of excessive force (against Defendants Chatham

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and Van Leer).” (Defs.’ Obj. 2:13-19, ECF No. 221.) In essence,

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Defendants seek the removal of Defendant Chatham from the first

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claim,

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Amendment,

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findings

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judgment motion adjudicated that claim in Defendant Chatham’s

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favor. (Id. at 1:27-2:12.)

i.e.,

Supplement

excessive

arguing
and

the

to

Pretrial

force

in

Magistrate

recommendations

on

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Order,”

violation
Judge’s
certain

in

of

which

the

January
Defendants’

they

Eighth

18,

2013

summary

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Defendants

neither

address

the

legal

standard

that

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applies to their request to modify a final pretrial order, nor

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demonstrate that it has been met. See Galdamez v. Potter, 415

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F.3d 1015, 1020 (9th Cir. 2005) (“[The moving party] ha[s] the

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burden of showing that an amendment to the pretrial order was

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necessary to prevent ‘manifest injustice.’” (citing Fed. R. Civ.

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P. 16(e))). The Magistrate Judge’s January 18, 2013 findings and

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recommendations, which were adopted in full by the undersigned

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judge on July 8, 2013, deny Defendants’ summary judgment motion

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as to Defendant Chatham altogether; they do not adjudicate a

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particular claim alleged against Defendant Chatham in his favor.

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(See

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Adopting

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request to modify the Second Supplement to Pretrial Order is

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DENIED.

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Dated:

January

18,

F.&R.

2013

2:10-13,

F.&R.
ECF

15:21-16:2,
No.

July 7, 2015

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158.)

ECF

No.

Therefore,

145;

Order

Defendant’s