Christ v. Blackwell et al

Filing 64

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/1/2012 ORDERING that plaintiff's 47 request to modify the scheduling order is DENIED; plaintiff's 1/3/2012 pretrial statement is DEEMED TIMELY FILED; defendants' 52 motion to dismiss is DENIED; and the clerk is to TERMINATE docket entries 48 , 55 . (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JON CHRIST,
Plaintiff,

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No. CIV S-10-0760 EFB P

vs.
R. BLACKWELL, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The case is before the undersigned pursuant to the parties’ consent. See 28

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U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2).

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Currently before the court are plaintiff’s request to modify the scheduling order (Docket

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No. 47), plaintiff’s requests for the attendance at trial of incarcerated witnesses (Docket Nos. 48,

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55), and defendants’ motion to dismiss (Docket No. 52). For the reasons that follow, the court

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denies plaintiff’s motion to modify the scheduling order, defers ruling on plaintiff’s requests for

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the attendance of incarcerated witnesses, and denies defendants’ motion to dismiss.

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In plaintiff’s September 22, 2011 request to modify the scheduling order, he essentially

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objects to defendants’ responses to his discovery requests. Dckt. No. 47. This court has

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previously informed plaintiff that discovery in this action is now closed, and that to re-open
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discovery plaintiff must request that the court modify the scheduling order and satisfy the “good

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cause” standard set out in Fed. R. Civ. P. 16(b)(4). See Dckt. No. 45. Good cause exists when

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the moving party demonstrates he cannot meet the deadline despite exercising due diligence.

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Although titled,

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“request for a modification of the scheduling order,” plaintiff makes no effort to show that good

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cause exists to modify the schedule. Defendants opposed plaintiff’s motion on this ground, and

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plaintiff, in his reply brief, still failed to demonstrate the requisite good case. Dckt. Nos. 49, 54.

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Accordingly, plaintiff’s motion is denied.

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In plaintiff’s September 29, 2011 and October 21, 2011 filings, he requests the

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attendance of incarcerated witnesses at trial, and permission to correspond with certain

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witnesses. Dckt. Nos. 48, 55. Since filing those motions, plaintiff has filed his pretrial

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statement, in which he lists six witnesses for trial, summarizes the anticipated testimony as to

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five of those witnesses, and restates his request to communicate with two of the witnesses to

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determine if they are willing to testify voluntarily. See Dckt. No. 62. In due course, the court

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will issue a pretrial order. At that time, the court will determine how to proceed as to plaintiff’s

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incarcerated witnesses, including whether writs should issue requiring the witnesses’ custodians

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to bring them to court for the trial.

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In defendants’ October 21, 2011 motion to dismiss, they argue this action should be

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dismissed because plaintiff failed to timely file a pretrial statement. Dckt. No 52. They contend

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they are prejudiced because their time to prepare for trial is shortened as “each day passes and

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the trial date looms closer . . . .” Id. at 3. However, no trial has been scheduled in this action,

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and plaintiff has now filed his pretrial statement, which the court deems timely filed. Defendants

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have not demonstrated how plaintiff’s delay in filing his pretrial statement has prejudiced them,

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and have not demonstrated that the dismissal of this action is appropriate. Accordingly,

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defendants’ motion to dismiss is denied.

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Accordingly, it is hereby ordered that:

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1. Plaintiff’s September 22, 2011 request to modify the scheduling order (Docket No.

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47) is denied.

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2. Plaintiff’s January 3, 2012 pretrial statement is deemed timely filed.

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3. Defendants’ October 21, 2011 motion to dismiss (Docket No. 52) is denied.

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4. The Clerk is directed to terminate docket entries 48 and 55.

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DATED: February 1, 2012.

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