Lopez v. Schwarzenneger

Filing 149

ORDER signed by Magistrate Judge Gregory G. Hollows on 04/13/12 ordering the motions filed by plaintiff while proceeding pro se on 01/03/12 122 , on 01/12/12 125 , on 02/27/12 137 , on 03/15/12 141 as well as the proposed second amended complain t filed on 03/15/12 142 are hereby vacated, without prejudice from the court's calendar. Plaintiff's counsel is granted an extension of time until 05/31/12 to notice a motion to compel discovery for hearing on the court's calendar in accordance with Local Rule 251(a); at this time the extended dispositive motion deadline of 07/17/12 remains in effect. (see order for further details) (Plummer, 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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ANDREW RICK LOPEZ,

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Plaintiff,

No. CIV S-09-1760 MCE GGH P

vs.

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ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

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ORDER
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Plaintiff, a state prisoner who has been proceeding pro se, but is now represented

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by retained counsel as of April 9, 2012, seeks relief pursuant to 42 U.S.C. § 1983. By Order,

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filed on February 29, 2012, the January 10, 2012, Findings and Recommendations of the

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undersigned were adopted in full, and this matter proceeds now as to the fourteen defendants that

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remain on plaintiff’s claims one, four and five only. See docket # 138.

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Pending before the court are a number of motions that plaintiff filed while

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proceeding pro se: 1) plaintiff’s motion to compel discovery, sixth motion for appointment of

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counsel, motion for entry of default and motion for extension of time, all filed in one document,

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on January 3, 2012; to which defendants filed an opposition on January 20, 2012, after which

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plaintiff filed a reply on February 2, 2012; 2) plaintiff’s motion for court-appointed experts,

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pursuant to Fed. R. Evid. 706, filed on January 12, 2012, to which defendants filed their
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opposition on January 30, 2012; 3) plaintiff’s motion for an extension of time to request

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discovery and to file pretrial motions, filed on February 27, 2012, to which defendants filed an

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opposition on March 12, 2012, after which plaintiff filed a reply on March 28, 2012; 4) plaintiff’s

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motion for reconsideration, filed on March 15, 2012, which defendants opposed on April 2,

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2012; 5) [proposed] second amended complaint, filed on March 15, 2012.1 In light of plaintiff’s

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very recent representation by counsel, the court will vacate all of these motions brought by

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plaintiff pro se, but will do so without prejudice. Counsel should review the pro se motions and

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re-notice them only if they should be re-noticed in good faith.

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Because plaintiff now has counsel, Local Rule 230(l) no longer applies to this

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action. Plaintiff’s counsel has filed a notice regarding the parties’ intent to comply with Local

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Rule 251 with respect to plaintiff’s motion to compel, filed on January 3, 2012 (and herein

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vacated), expressing his intent to meet and confer with defendants with regard to the disputed

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discovery responses and defendants’ opposition to the motion. See docket # 148. In order to be

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in compliance with L.R. 251, however, counsel for plaintiff must notice the motion for hearing.

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Current deadlines per the court’s scheduling order, filed on January 10, 2012 (docket # 124), re-

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set the discovery cut-off date as March 13, 2012, and the dispositive motion filing deadline as

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July 17, 2012. Because the court is now vacating, without prejudice, all pending motions that

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plaintiff filed pro se, the undersigned will extend the deadline for plaintiff’s counsel to notice a

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motion to compel discovery for hearing until May 31, 2012.

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Plaintiff pro se filed multiple motions even though, by Order, filed on January 10, 2012,
plaintiff, due to excessive and burdensome motion-filing in this case, was limited to the filing of
one motion or request until such time as the court reached a ruling, absent an emergency, which
was defined as constituting a genuine urgent need brought in good faith and well-supported by
affidavit and supporting exhibits. See docket # 124, pp. 16-17. Thus, plaintiff as a pro se litigant
clearly disregarded that order with respect to his motions filed after January 12, 2012 ( his
January 12, 2012, request having been filed by application of the mailbox rule, on January 9,
2012).
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Accordingly, IT IS HEREBY ORDERED that:

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1. The motions filed by plaintiff while proceeding pro se, on January 3, 2012

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(docket # 122), on January 12, 2012 (docket # 125), on February 27, 2012 (docket # 137), on

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March 15, 2012 (docket # 141), as well as the [proposed] second amended complaint, filed on

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March 15, 2012 (docket # 142), are hereby VACATED, without prejudice, from the court’s

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calendar;

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2. In light of plaintiff having newly retained counsel, the Local Rule 230(l) no

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longer applies to this action; instead, the remaining provisions of L.R. 230 are applicable; and

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3. Plaintiff’s counsel is granted an extension of time until May 31, 2012, to notice

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a motion to compel discovery for hearing on the court’s calendar in accordance with L.R. 251(a);

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at this time the extended dispositive motion deadline of July 17, 2012 remains in effect.

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Following the meet-and-confer re: discovery disagreements pursuant to L.R. 251(b), should

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plaintiff remain dissatisfied, a Joint Statement re: Discovery Disagreement must be filed in

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accordance with L.R. 251(c), unless the exception at L.R. 251(e)(1) should apply.

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DATED: April 13, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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lope1760.mtns

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