Montano v. Medical Department Solano State Prison et al

Filing 65

AMENDED ORDER signed by Magistrate Judge Kendall J. Newman on 4/20/11 ORDERING that a status conference is scheduled before the undersigned on 5/19/11 at 10:00 a.m., in Courtroom No. 25. Arrangements will be made for plaintiff to appear telephonically; an Order and Writ of Habeas Corpus Ad Testificandum 64 was issued on 4/15/11. On or before 5/12/11, both parties shall file a separate further status report. (see order for further details)(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL MONTANO,

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Plaintiff,

No. 2:07-cv-0800 KJN P

vs.
DR. SOLOMON, et al.,

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AMENDED ORDER

Defendants.

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RE. MAY 19, 2011 STATUS CONFERENCE
/

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This order amends the undersigned’s order filed April 15, 2011 (Dkt. No. 63), for

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the limited purpose of informing the parties that the court will not be providing plaintiff with an

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interpreter at the May 19, 2011 Status Conference, or at any subsequent conference or hearing,

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for the reasons discussed below. All other matters set forth in the court’s prior order remain

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unchanged, and are repeated herein.

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Plaintiff is a state prisoner proceeding in forma pauperis in this civil rights action

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filed pursuant to 42 U.S.C. § 1983. This case proceeds on plaintiff’s Second Amended

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Complaint against sole remaining defendant Dr. Richard Tan. The parties have agreed to the

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jurisdiction of the undersigned magistrate judge for all purposes. See 28 U.S.C. § 636(c); Local

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Rule 305(a).

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The parties have filed separate status reports in compliance with this court’s
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orders filed January 27, 2011, and March 7, 2011. This case is currently scheduled for trial to

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commence on September 19, 2011, with a pretrial conference scheduled for August 4, 2011.

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Discovery has closed, and the deadline for filing dispositive motions has expired. However, each

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party indicates an intent to seek leave of court to supplement the current record and/or to extend

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deadlines, and both request an early status conference prior to the scheduled pretrial conference.

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Plaintiff states that he intends to seek leave of court to amend the operative

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Second Amended Complaint in order to add information pertaining to a related administrative

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grievance (“Medical Appeal Log Number CSQ-5-10-01876”). Although the grievance has not

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been administratively exhausted, plaintiff asserts that it “relates back” to the allegations of his

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Second Amended Complaint. See Fed. R. Civ. P. 15(a); Rhodes v. Robinson, 621 F.3d 1002

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(9th Cir. 2010). (Dkt. No. 62 at 3-4.) Plaintiff states that he “needs no further discovery at this

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time, and opposes re-opening discovery. . . .”1 (Id. at 4.)

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Defendant states that he intends to “ask[] the Court to reopen discovery for a short

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period of time so that [defendant] can complete the discovery needed to file a combined

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summary adjudication/judgment motion.” (Dkt. No. 59 at 3.) Defendant intends to assert, inter

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alia, that plaintiff’s “cause of action is barred by [his] failure to timely exhaust . . . administrative

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remedies and the applicable statute of limitations. . . .” (Id. at 2.)

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Both parties express willingness to consider an early settlement conference or

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other form of Alternative Dispute Resolution, and both parties agree to the undersigned

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magistrate judge acting as the settlement judge. (Dkt. No. 62 at 4-5; Dkt. No. 59 at 3.) Both

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parties seek a status conference prior to the pretrial conference. (Dkt. No. 62, at 5; Dkt. No. 59 at

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3.) Plaintiff requests a Spanish interpreter for any court proceedings. (Dkt. No. 62 at 4.)

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The authorization and funding for interpreters in the federal courts is provided

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Plaintiff notes that he has been relying on the legal assistance of another inmate, whose
assistance is presently impeded by a medical quarantine of their prison unit commencing March
6, 2011, and who cannot obtain preferred library use without court order. (Dkt. No. 62 at 2.)
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solely to individuals appearing in criminal or civil actions initiated by the United States. See 28

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U.S.C. § 1827(a), (d), § 1828(a). There is no funding or personnel to accommodate the

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interpreter needs of civil litigants, including prisoner civil rights litigants. Accordingly, this

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court has no authorization to provide plaintiff with interpreter services for any conference or

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hearing that may take place in this action. The status conference scheduled in this matter will

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therefore proceed without a court-appointed interpreter for plaintiff. If plaintiff is certain that he

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requires the assistance of an interpreter, he may privately arrange for, and retain, the services of a

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certified or other judicially-designated interpreter,2 for the limited purpose of assisting plaintiff

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from the courtroom at the May 19, 2011 telephone conference. Alternatively, for purposes of the

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May 19, 2011 conference only, the court will consider utilizing, in the courtroom, the translation

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assistance of one of plaintiff’s friends or family members. If plaintiff intends to utilize any of

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these arrangements, he should make his proposal to the court no less than two weeks before the

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hearing, or by May 5, 2011. Finally, although the court takes no position on the matter, plaintiff

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may attempt to coordinate with prison officials to obtain the informal translation services of a

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correctional staff member or another inmate, to assist plaintiff at the prison during the telephone

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conference. Separate arrangements and court approval must be obtained for any future hearing in

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which plaintiff is certain he needs an interpreter, e.g., at settlement conference, at any hearing on

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a motion for summary judgment, at pretrial conference, or at trial.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. A status conference is scheduled before the undersigned on Thursday, May 19,

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2011, at 10:00 a.m., in Courtroom No. 25. Arrangements will be made for plaintiff to appear

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telephonically; an Order and Writ of Habeas Corpus Ad Testificandum was issued on April 15,

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2011 (Dkt. No. 64).

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Cf. Local Rule 403(a) (“only official, judicially-designated interpreters may interpret
official courtroom proceedings in criminal actions”); see also 28 U.S.C. § 1827(d)(1) (judge must
utilize services of certified interpreter or, if one is not available, “an otherwise qualified
interpreter”).
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2. On or before May 12, 2011, both parties shall file a separate further status
report that addresses the following:

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a. Proposed dates for a settlement conference; and

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b. Proposed rescheduled dates for pretrial conference and trial.

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3. In addition to the matters set forth in Item 2, plaintiff shall:

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a. Attach to his Status Report a proposed Third Amended Complaint that
incorporates the allegations of his pending administrative grievance;

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b. Explain in his Status Report the current status of the subject
administrative grievance; if the grievance has not yet been administratively exhausted, explain
why amendment of the currently operative Second Amended Complaint would not be futile; and

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c. Explain in his Status Report why plaintiff opposes defendant’s intended

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request to reopen discovery, especially why that is true if the court permits plaintiff leave to file a

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Third Amended Complaint.

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4. In addition to the matters set forth in Item 2, defendant shall:

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a. Address whether defendant opposes plaintiff’s request to further amend
his complaint and, if so, why;

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b. Identify the additional discovery defendant seeks, the estimated time

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for completing such discovery, and the proposed deadline for filing a dispositive motion; and

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c. Explain why such discovery and motion were not completed before

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expiration of the current deadlines.

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5. Each of these matters will be addressed by the court at the May 19, 2011 status

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conference.

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SO ORDERED.
DATED: April 20, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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