Stribling v. Lucero

Filing 40

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/08/19 OVERRULING 39 plaintiff's objections to the pretrial order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON STRIBLING,

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No. 2:16-cv-1438-TLN-EFB P

Plaintiff,
v.

ORDER

LUCERO,
Defendant.

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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. On October 5, 2018, the court issued a Pretrial Order. ECF No. 38. Plaintiff has

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filed objections. ECF No. 39. As explained below, plaintiff’s objections are overruled.

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Plaintiff’s first objection is to the statement in the Pretrial Order that plaintiff “admitted to

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Gunderson being there.” Id. at 1. The objection is overruled for the reason stated in the Pretrial

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Order itself. ECF No. 38 at 2 n.1. Although plaintiff questioned in his pretrial statement whether

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Gunderson was “even present the day of the incident?” (ECF No. 35 at 2), plaintiff’s sworn

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complaint (ECF No. 1 at 5) admits to Gunderson’s presence.

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Plaintiff next objects to the first undisputed fact listed in the Pretrial Order, which states

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that plaintiff is serving a sentence for second degree robbery. See ECF No. 38 at 1. Plaintiff does

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not actually dispute the truth of the statement, but rather, objects that the court “has no proof” and

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is just “trying to incriminate” plaintiff. ECF No. 39 at 1. To the contrary, the court is simply
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trying to narrow the issues for trial. Absent a genuine dispute regarding this fact, plaintiff’s

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objection is overruled. If plaintiff objects to the admissibility of his conviction he shall present

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that objection to the trial judge in an appropriate in limine motion and a timely objection at trial.

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Finally, plaintiff objects that the Pretrial Order does “not correctly and accurately not[e]

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all the true disputes.” ECF No. 39. The Pretrial Order does not restate every disputed factual and

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evidentiary issue that plaintiff identified in his pretrial statement (ECF No. 35 at 1-3) because not

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all of them are material. The Pretrial Order does however, include the disputed factual and

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evidentiary issues that may be relevant at trial. Plaintiff’s objection therefore, is overruled.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s objections to the Pretrial Order

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(ECF No. 39) are overruled.

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DATED: February 8, 2019.

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