Opinion
1:10cv02373 LJO DLB PC
04-16-2013
JAMES CRANE, Plaintiff, v. JAMES A. YATES, et al., Defendants.
ORDER VACATING ORDER
TO SHOW CAUSE AND DENYING
DEFENDANT'S MOTION TO DISMISS
(Documents 68, 71)
ORDER GRANTING DEFENDANT A FOUR-
DAY EXTENSION OF TIME TO FILE
PRETRIAL STATEMENT
Telephonic Trial Confirmation
Hearing: May 9, 2013, at 8:30 a.m. in
Courtroom 4 (LJO)
Jury Trial: June 18, 2013, at 8:30 a.m. in
Courtroom 4 (LJO)
Plaintiff James Crane ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's Eighth Amendment excessive force claim against Defendant Aguirre. The telephonic trial confirmation hearing is set for May 9, 2013, and trial is currently set for June 18, 2013.
On April 16, 2013, the Court issued an Order to Show Cause why this action should not be dismissed for Plaintiff's failure to file a timely pretrial statement. Also on April 16, 2013, Defendant filed a Motion to Dismiss based on Plaintiff's failure to follow the Court's order and file a pretrial statement.
However, on April 15, 2013, the Court received Plaintiff's pretrial statement. Although the statement was docketed on April 16, 2013, it was placed in the mail on April 9, 2013. Pursuant to the prison mailbox rule, the statement is deemed filed on the date the prisoner delivered it to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).
Therefore, Plaintiff's pretrial statement is timely and the Order to Show Cause is VACATED. Defendant's Motion to Dismiss is DENIED. However, Defendant will receive a four-day extension of time within which to file a pretrial statement. Defendant's pretrial statement is due on or before April 29, 2013.
The telephonic trial confirmation hearing remains on calendar for May 9, 2013, at 8:30 a.m. IT IS SO ORDERED.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE