Mayweathers v. Swarthout et al

Filing 48

ORDER signed by Magistrate Judge Kendall J. Newman on 2/28/12 ORDERING that 46 Motion to vacate the February 24, 2012 deadline for defendants pretrial statement is granted, nunc pro tunc; the Pretrial Conference scheduled for March 9, 2012, is vacated; and plaintiff shall timely respond to the pending motion to dismiss, filed by defendants on February 24, 2012.(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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KARLUK M. MAYWEATHERS,

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Plaintiff,

No. 2:09-cv-3284 LKK KJN P

vs.
GARY SWARTHOUT, et al.,
Defendants.

ORDER
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Defendants have filed an ex parte application for an order vacating the February

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24, 2012 deadline for filing their pretrial statement. Defendants correctly note that plaintiff failed

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to file his separate pretrial statement, which was due on February 10, 2012. This is the second

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time that plaintiff missed his pretrial statement deadline; when he missed the initial deadline of

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December 16, 2011, defendants filed an ex parte application to extend all deadlines, which the

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court granted by order filed January 5, 2012. However, plaintiff has not since communicated

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with the court. For good cause shown, defendants’ application is granted.

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The court notes, however, that this case currently remains scheduled for a trial

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confirmation hearing before the Honorable Lawrence K. Karlton, on April 23, 2012, and for

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commencement of trial before Judge Karlton on July 24, 2012 (neither of which can proceed in

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the absence of pretrial statements filed by both plaintiff and defendants).
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Defendants have also filed a motion to dismiss this action, which was served on

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plaintiff, and remains pending. (Dkt. No. 47.) Plaintiff is informed that, pursuant to Local Rule

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230(l), “[o]pposition, if any, to the granting of the motion shall be served and filed by the

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responding party not more than twenty-one (21) days after the date of service of the motion. A

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responding party who has no opposition to the granting of the motion shall serve and file a

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statement to that effect, specifically designating the motion in question. Failure of the

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responding party to file an opposition or to file a statement of no opposition may be deemed a

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waiver of any opposition to the granting of the motion and may result in the imposition of

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sanctions.” In addition, Local Rule 110 provides that failure to comply with the Local Rules

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“may be grounds for imposition of any and all sanctions authorized by statute or Rule or within

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the inherent power of the Court.” Finally, Federal Rule of Civil Procedure 41(b) provides:

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Involuntary Dismissal; Effect. If the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision
(b) and any dismissal not under this rule -- except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule
19 -- operates as an adjudication on the merits.

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It may be that the matters pursued in this action, while plaintiff was incarcerated

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at California State Prison-Solano, are no longer significant to plaintiff since his transfer to the

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California Men’s Colony. (This action challenges defendants’ refusal to provide plaintiff, a

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Muslim, with a Halal diet, or a Kosher diet pending implementation of the Halal diet program.)

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If plaintiff no longer intends to pursue this action, he must so inform the court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ ex parte application (Dkt. No. 46), to vacate the February 24, 2012

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deadline for defendants’ pretrial statement is granted, nunc pro tunc;

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2. The Pretrial Conference scheduled for March 9, 2012, is vacated; and

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3. Plaintiff shall timely respond to the pending motion to dismiss, filed by

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defendants on February 24, 2012.

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DATED: February 28, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mayw3284.vacate.ptc

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