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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARCHIE A. MARTINEZ,

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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

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to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to vacate the scheduling

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order (Doc. 76), and two motions to strike (Docs. 79, 80).

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The current scheduling order set a discovery cut off date of March 5, 2012. The

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parties incurred some difficulties in completing the necessary discovery, and the court granted

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the defendants’ motion to compel plaintiff’s deposition. In addition, plaintiff has requested the

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appointment of counsel. The undersigned originally denied that motion, but upon

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reconsideration the District Court is requiring the undersigned look at plaintiff’s request again.

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The request for counsel will be addressed by separate order. In the meantime, the defendants

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request the scheduling order be vacated until plaintiff’s entitlement to counsel has been
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determined. The undersigned agrees that before this action can continue, plaintiff’s request for

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counsel, and his mental capacity, need to be addressed. Therefore, the scheduling order will be

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vacated until this determination has been made. Once plaintiff’s request for counsel has been

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addressed, the court will issue a new scheduling order.

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In addition, there are two other outstanding motions (Doc. 79, 80) wherein both

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parties are attempting to strike the other’s pleadings. In defendants’ motion to strike (Doc. 79),

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defendants object to plaintiff’s filing due to the filing being signed by plaintiff and his jailhouse

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assistant. While it may be improper for another inmate to sign plaintiff’s pleading, plaintiff also

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signed the document complained of. In addition, the document defendants complain about has

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already been addressed by the District Court. Therefore, any request to strike that document at

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this point is moot. If the District Court would have found the document inappropriately filed, it

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would have been addressed in the court’s order. In addition, plaintiff’s motion to strike is

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objecting to the defendants’ motion to strike. As defendants’ motion to strike will be denied,

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plaintiff’s motion to strike is similarly moot, and will be denied.

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Accordingly, IT IS HEREBY ORDERED that

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1.

Defendants’ motion to vacate the scheduling order (Doc. 76) is granted;

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2.

A new scheduling order will be issued by the undersigned at the

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appropriate time;

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3.

Defendants’ motion to strike (Doc. 79) is denied; and

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4.

Plaintiff’s motion to strike (Doc 80) is denied.

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DATED: September 30, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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