Smith v. Priolo et al

Filing 63

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/15/2012 ORDERING that pursuant to the 10/18/2012 pretrial order, the Clerk shall TERMINATE plaintiff's 49 , 52 requests. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL D. SMITH,
Plaintiff,

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vs.

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No. 2:09-cv-0654 JAM EFB P

B. PRIOLO, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On October 18, 2012, the court issued a tentative pretrial order and set this case

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for trial before the district judge on April 13, 2013. Dckt. No. 56. On October 30, 2012,

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plaintiff filed “objections,” but as discussed below, did not set forth the basis of any objections

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or articulate what changes, if any, should be made to the pretrial order. Accordingly, the court

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will not make any changes to the pretrial order, which is now final. Pursuant to Federal Rule of

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Civil Procedure 16, the pretrial order shall control the subsequent course of this action and will

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not be modified except according to its terms or to prevent manifest injustice.

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In his objections, plaintiff lists fifteen undisputed facts, which are nearly identical to the

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undisputed facts set forth in the pretrial order. Plaintiff slightly modifies some of the undisputed

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facts by adding a few details. It is not clear whether the additional details offered by plaintiff are

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undisputed, and plaintiff does not appear to actually object to any of the undisputed facts as set
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forth in the pretrial order. Plaintiff states that “all other factual issues pertaining to this case

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[are] in dispute,” but the court will not guess as to which of the specific factual issues plaintiff

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refers. Plaintiff omits undisputed fact numbers 16-19, but those facts are consistent with

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plaintiff’s complaint and pretrial statement. Accordingly, the court will not make changes to the

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pretrial order’s section on undisputed or disputed facts.

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Plaintiff objects to defendants’ position regarding whether he may testify about his

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injuries. This is an evidentiary issue that must be contained in the pretrial order in order for

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defendants to raise it at trial. Fed. R. Civ. P. 16(d), (e)). Plaintiff’s objection is therefore

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overruled. As stated in the pretrial order, evidentiary issues must be addressed by appropriate in

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limine motions filed not later than twenty-one days before trial. Should defendants file a motion

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in limine on this evidentiary issue, plaintiff may express any objections thereto through an

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opposition brief.

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Plaintiff adds a points of law section in his objections. Plaintiff’s points of law do not

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significantly differ from those set forth in the pretrial order. Plaintiff may include his points of

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law in his trial brief, which shall be served and filed not later than fourteen days before trial.

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Plaintiff indicates he is willing to settle his case for $1500 and asks the court to help him

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settle his case. The court-ordered settlement conference held on July 11, 2012 was not

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successful. If plaintiff still wishes to pursue a settlement agreement, he may engage in

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settlement negotiations without the court’s assistance.

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Plaintiff includes a “discovery request” for inmate complaints of excessive force against

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the defendants. Pursuant to the November 2, 2010 discovery and scheduling order, discovery

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closed on February 25, 2011. Dckt. No. 19. A scheduling order may only be modified upon a

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showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party

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demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Plaintiff’s untimely discovery

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request is denied.
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Plaintiff requests a copy of his complaint and its exhibits for use “to complete

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discovery.” As noted, discovery in this action is closed. The Clerk’s Office will provide copies

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of documents (in cases 2005-present) and of the docket sheet at $0.50 per page.

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Finally, plaintiff requests that trial be continued to at least October 2013. The pretrial

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order, dated October 18, 2012, provided the parties with nearly six months notice of the April

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2013 trial date. Plaintiff fails to demonstrate good cause for delaying trial in this matter.

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Pursuant to the October 18, 2012 pretrial order, the Clerk of the Court shall terminate

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docket numbers 49 and 52.

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So ordered.

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DATED: November 15, 2012.

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