Willaims v. Sullivan et al

Filing 73

ORDER signed by Magistrate Judge Kendall J. Newman on 3/1/13 ORDERING that defendants January 25, 2013 motion to dismiss (dkt. no. 69 ) is DENIED; Plaintiffs January 28, 2013 motion (dkt. no. 70 ) is construed as plaintiffspretrial statement; D efendants February 22, 2013 motion to dismiss (dkt. no. 72 ) is DENIED; Plaintiff shall file an amended pretrial statement within 21 days from the date of this order; defendant shall file his pretrial statement 14 days thereafter; The pretrial conference, to be conducted on the file only, without appearance by either party, is continued to April 22, 2013; and the April 8, 2013 jury trial date is continued to June 3, 2013, at 9:00 a.m., in Courtroom #25.(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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ANTHONY WILLIAMS,

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Plaintiff,

No. 2:09-cv-3160 KJN P

Defendant.

ORDER

vs.
SULLIVAN,

/
Plaintiff is a state prisoner proceeding without counsel. Both parties consented to

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proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On August 28, 2012,

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defendant Sullivan was granted summary judgment on all claims except for plaintiff’s Eighth

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Amendment claim based on defendant’s alleged failure to provide medical care after plaintiff

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allegedly informed him that plaintiff was ill. (Dkt. No. 63.) This matter is set for jury trial on

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April 8, 2013, before the undersigned.

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On January 25, 2013, defendant filed a motion to dismiss this action based on

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plaintiff’s alleged failure to timely file a pretrial statement. (Dkt. No. 69.) However, on January

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28, 2013, plaintiff filed a document styled, “Plaintiff’s Notice of Motion and Motion for Pretrial

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Statements and Supporting Evidence.” (Dkt. No. 70.) Liberally construed, this filing is

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plaintiff’s pretrial statement. Plaintiff presented the filing to prison officials for mailing on
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January 10, 2013, which was timely under the court’s December 21, 2012 revised scheduling

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order. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from

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the date prisoner delivers it to prison authorities). Accordingly, defendant’s January 25, 2013

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motion to dismiss is denied.

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On February 22, 2013, defendant filed a second motion to dismiss.1 Defendant

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argues that this case should be dismissed based on plaintiff’s failure to provide the information

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required by Local Rule 281, because defendant is prejudiced because he is unable to adequately

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comply with pretrial and trial preparation. Defendant argues that plaintiff simply recited the

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allegations of his complaint, and appended his complaint and its exhibits. Defendant contends

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that plaintiff did not identify witnesses, trial exhibits, issues, or any other required information.

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Plaintiff’s pretrial statement indicates that plaintiff would serve as his own

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witness. (Dkt. No. 70 at 1.) However, defendant is correct that plaintiff did not identify specific

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exhibits he seeks to admit at trial, and failed to provide the additional information required by

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Local Rule 281. Because plaintiff is proceeding without counsel, the court will grant plaintiff

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leave to file an amended pretrial statement, and deny defendant’s motion.

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Plaintiff is advised that his complaint is not evidence. Plaintiff should not append

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his complaint to his amended pretrial statement. Moreover, because plaintiff’s claims were

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narrowed by the court’s ruling on defendant’s motion for summary judgment, plaintiff need only

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address the remaining claim in this action: plaintiff’s Eighth Amendment claim based on

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defendant’s alleged failure to provide medical care after plaintiff allegedly informed him that he

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was ill. Only those exhibits pertinent to such remaining claim should be offered at trial.

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Local Rule 281(b) sets forth the information plaintiff should address in his
amended pretrial statement:

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Defendant’s filing references a hearing date of March 27, 2013, at 10:00 a.m., in
Department 25. (Dkt. No. 72 at 1.) However, because plaintiff is incarcerated, all motions are
submitted on the papers. L.R. 230(l). The court does not construe defendant’s motion as a
motion to dismiss for lack of prosecution.
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(b) Form, Contents. The pretrial statement shall state the name of
the party or parties on whose behalf it is presented and set forth the
nature of the action and the following matters, under the following
captions and in the following order:

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(1) Jurisdiction - Venue. The factual and statutory basis of federal
jurisdiction and venue and whether there is any dispute concerning
jurisdiction or venue.

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(2) Jury - Non-Jury. Whether the party has demanded a jury trial of
all or any of the issues or, if not, whether a demand for jury trial
made by any other party is conceded or contested.

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(3) Undisputed Facts. A plain, concise statement of the facts that
are undisputed.
(4) Disputed Factual Issues. A plain, concise statement of each fact
(and any related essential facts) that the party claims or concedes to
be in dispute.
(5) Disputed Evidentiary Issues. A plain, concise summary of any
reasonably anticipated disputes concerning admissibility of live
and deposition testimony, physical and demonstrative evidence and
the use of special technology at trial, including computer
animation, video discs, and other high technology, and a statement
whether each such dispute should be resolved by motion in limine,
briefed in the trial brief, or addressed in some other manner.
(6) Special Factual Information in Certain Actions. . . .

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(7) Relief Sought. The elements of monetary damage, if any, and
the specific nature of any other relief sought.
(8) Points of Law. A statement of the legal theory or theories of
recovery or of defense and of any points of law (substantive or
procedural) that are or may reasonably be expected to be in
controversy, citing the pertinent statutes, ordinances, regulations,
cases, and other authorities relied upon. Extended legal argument is
not required in the pretrial statement.

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(9) Abandoned Issues. A statement of all issues raised by the
pleadings that have been abandoned, including, for example,
claims for relief and affirmative defenses.

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(10) Witnesses. A list (names and addresses) of all prospective
witnesses, whether offered in person or by deposition or
interrogatory, designating those who are expert witnesses. Only
witnesses so listed will be permitted to testify at the trial, except as
may be otherwise provided in the pretrial order.

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(11) Exhibits - Schedules and Summaries. A list of documents or
other exhibits that the party expects to offer at trial. Only exhibits
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so listed will be permitted to be offered at trial except as may be
otherwise provided in the pretrial order.

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(12) Discovery Documents. A list of all portions of depositions,
answers to interrogatories, and responses to requests for admission
that the party expects to offer at trial.

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(13) Further Discovery or Motions. Any requests for further
discovery or pretrial motions. Where discovery and/or law and
motion has been terminated by a Court order, counsel shall set
forth the grounds for relief from that order and why a motion to be
relieved was not made before the date ordered in the status
conference for termination. Motions for relief at pretrial are not
favored and will ordinarily be denied unless the moving party
makes a strong showing.
(14) Stipulations. Any stipulations requested or offered for pretrial
or trial purposes.

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(15) Amendments - Dismissals. Any requested amendments to
pleadings, dismissals, additions or substitutions of parties, or
dispositions as to defaulting parties.

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(16) Settlement Negotiations. A statement whether settlement
negotiations between parties and/or a court settlement conference
under L.R. 270 would be helpful.

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(17) Agreed Statements. A statement whether presentation of all or
part of the action upon an Agreed Statement of Facts is feasible
and advisable.

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(18) Separate Trial of Issues. A statement whether separate trial of
any of the issues is feasible and advisable.
(19) Impartial Experts - Limitation of Experts. A statement
whether appointment by the Court of impartial expert witnesses or
limitation of the number of expert witnesses is advisable.
(20) Attorneys' Fees. A statement whether attorneys' fees are
sought and the time and manner in which they are to be
ascertained. See L.R. 293.
(21) Trial Exhibits. Any special handling of trial exhibits and a
statement of advisability of court retention of exhibits pending
appeal decision. See L.R. 138(e).
(22) Trial Protective Order. Whether a trial protective order will be
sought pursuant to L.R. 141.1(b)(2).

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(23) Miscellaneous. Any other appropriate comments, suggestions,
or information that might aid in the disposition of the action,
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including references to any matters set forth in Fed. R. Civ. P.
16(c).

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Local Rule 281(b).

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Plaintiff is cautioned that failure to file an amended pretrial statement as provided

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in this order will result in the dismissal of this action. See Fed. R. Civ. P. 16(f); Local Rule 110.

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In light of this order, it is necessary to continue the trial date in order to allow time

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for the parties file pretrial statements, and the court to issue a pretrial order. Thus, the April 8,

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2013 jury trial date is continued to June 3, 2013.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s January 25, 2013 motion to dismiss (dkt. no. 69) is denied;

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2. Plaintiff’s January 28, 2013 motion (dkt. no. 70) is construed as plaintiff’s

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pretrial statement;

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3. Defendant’s February 22, 2013 motion to dismiss (dkt. no. 72) is denied;

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4. Plaintiff shall file an amended pretrial statement within twenty-one days from

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the date of this order; defendant shall file his pretrial statement fourteen days thereafter;

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5. The pretrial conference, to be conducted on the file only, without appearance
by either party, is continued to April 22, 2013; and

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6. The April 8, 2013 jury trial date is continued to June 3, 2013, at 9:00 a.m., in

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Courtroom #25.

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DATED: March 1, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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will3160.pts

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