Opinion
CASE NO. 1:07-cv-00603-MJS PC
02-14-2013
BRANDON RACKLIFFE, Plaintiff, v. P. ROCHA, et al., Defendants.
ORDER GRANTING PLAINTIFF'S
MOTION TO CONTINUE TRIAL (ECF
Nos. 111, 114)
ORDER SETTING TRIAL SCHEDULING
CONFERENCE
Trial Conference: March 1, 2013, at 1:30
p.m. in Courtroom 6 (MJS)
ORDER AMENDING PRETRIAL ORDER
(ECF No. 110)
ORDER REQUIRING PLAINTIFF TO
RESPOND REGARDING MONEY
ORDERS
RESPONSE DUE MARCH 1, 2013
I. Background
Plaintiff Brandon W. Rackliffe ("Plaintiff") is a prisoner in the custody of the California Department of Correction and Rehabilitation. Plaintiff is proceeding pro se in this civil action pursuant to 42 U.S.C. § 1983. The action is proceeding on Plaintiff's First Amended Complaint against Defendants Rocha and Medina for excessive force in violation of the Eighth Amendment.
Pending before the Court is Plaintiff's motion to continue the trial date, filed January 23, 2013 and January 25, 2013. ECF Nos. 111, 114. On February 1, 2013, Defendants filed their opposition. ECF Nos. 115, 117. The matter is submitted pursuant to Local Rule 230(l). Also pending is the Court's order that Plaintiff notify the Court regarding his submitted witness fees.
II. Motion to Continue Trial
Plaintiff moves to continue the trial date due to Defendant Rocha's failure to communicate with his attorney of record, Michael Terhorst. Plaintiff contends that he cannot proceed to trial without Defendant Rocha's presence.
Defendants' counsel contends that he was able to communicate with Defendant Rocha. Thus, Plaintiff's rationale for proceeding to trial is now moot.
The Court will nonetheless grant a continuance of the trial. There remain other pending issues that will require a telephonic scheduling conference to resolve.
III. Witness Fees and Subpoenas
On January 10, 2013 Plaintiff submitted 29 money orders, one for each unincarcerated witness Plaintiff intends to subpoena to appear for trial. Plaintiff had requested service of these supoenas by the United States Marshal Service ("USMS"). On January 16, 2013, the Court issued an order requiring Plaintiff to notify the Court whether he wished to have the United States Marshal Service attempt service, or to use his own process server. Plaintiff was required to respond by January 29, 2013. Plaintiff did not respond. Plaintiff will be required to notify the Court. If Plaintiff fails to respond, the Court may sanction Plaintiff, up to and including dismissal of action.
IV. Amendment to Pretrial Order
Because this jury trial will be held in Fresno, California, the parties are required to submit their exhibits to courtroom deputy Wendy Kusamura in Fresno, not courtroom deputy Laurie Yu. All other provisions and deadlines apply.
V. Conclusion and Order
Accordingly, it is HEREBY ORDERED that:
1. By March 1, 2013, Plaintiff will notify the Court whether he wishes to have the United States Marshals Service serve subpoenas on any of the twenty-nine unincarcerated witnesses he previously identified or whether he wishes to secure the services of a private process server. PlaintiffIT IS SO ORDERED.
elects to have a private process server serve the subpoenas, Plaintiff will also notify the Court whether he wishes blank subpoenas be sent to Mr. C. Wallace Coppock or to Plaintiff. If Plaintiff fails to timely respond, the Court may sanction Plaintiff for failure to obey a court order, including dismissal of this action.
2. Plaintiff's motion to continue the trial, filed January 23, 2013 and January 25, 2013, is granted. Jury trial set for February 26, 2013 is vacated;
3. This matter is set for a telephonic trial scheduling conference on March 1, 2013 at 1:30 p.m. in Courtroom 6 before the Honorable Michael J. Seng;
4. Defendants' counsel is required to arrange for Plaintiff's participation in this scheduling conference and to initiate the scheduling conference by calling (559) 499-5946;
5. The January 16, 2013 Pretrial Order is modified as follows: "The original and five copies of all trial exhibits along with exhibit lists shall be submitted to Courtroom Deputy Wendy Kusamura at the Fresno Division of the Eastern District of California no later than February 19, 2013." All other provisions and deadlines of the Pretrial Order remain in effect.
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE