Martinez v. Hoover, et al

Filing 84

ORDER signed by Magistrate Judge Craig M. Kellison on 9/30/2013 GRANTING 76 Motion to Vacate and DENYING 79 & 80 Motions to Strike. A new scheduling order will be issued by the undersigned at the appropriate time. (Donati, J)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARCHIE A. MARTINEZ, 12 13 14 15 16 17 No. 2:09-cv-0680-KJM-CMK-P Plaintiff, vs. ORDER G. HOOVER, et al., Defendants. / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to vacate the scheduling 19 order (Doc. 76), and two motions to strike (Docs. 79, 80). 20 The current scheduling order set a discovery cut off date of March 5, 2012. The 21 parties incurred some difficulties in completing the necessary discovery, and the court granted 22 the defendants’ motion to compel plaintiff’s deposition. In addition, plaintiff has requested the 23 appointment of counsel. The undersigned originally denied that motion, but upon 24 reconsideration the District Court is requiring the undersigned look at plaintiff’s request again. 25 The request for counsel will be addressed by separate order. In the meantime, the defendants 26 request the scheduling order be vacated until plaintiff’s entitlement to counsel has been 1 1 determined. The undersigned agrees that before this action can continue, plaintiff’s request for 2 counsel, and his mental capacity, need to be addressed. Therefore, the scheduling order will be 3 vacated until this determination has been made. Once plaintiff’s request for counsel has been 4 addressed, the court will issue a new scheduling order. 5 In addition, there are two other outstanding motions (Doc. 79, 80) wherein both 6 parties are attempting to strike the other’s pleadings. In defendants’ motion to strike (Doc. 79), 7 defendants object to plaintiff’s filing due to the filing being signed by plaintiff and his jailhouse 8 assistant. While it may be improper for another inmate to sign plaintiff’s pleading, plaintiff also 9 signed the document complained of. In addition, the document defendants complain about has 10 already been addressed by the District Court. Therefore, any request to strike that document at 11 this point is moot. If the District Court would have found the document inappropriately filed, it 12 would have been addressed in the court’s order. In addition, plaintiff’s motion to strike is 13 objecting to the defendants’ motion to strike. As defendants’ motion to strike will be denied, 14 plaintiff’s motion to strike is similarly moot, and will be denied. 15 Accordingly, IT IS HEREBY ORDERED that 16 1. Defendants’ motion to vacate the scheduling order (Doc. 76) is granted; 17 2. A new scheduling order will be issued by the undersigned at the 18 appropriate time; 19 3. Defendants’ motion to strike (Doc. 79) is denied; and 20 4. Plaintiff’s motion to strike (Doc 80) is denied. 21 22 23 24 DATED: September 30, 2013 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?