Opinion
1:17-cv-00436-ADA-GSA-PC
04-17-2023
LARRY SMITH, Plaintiff, v. J. GONZALES, et al., Defendants.
ORDER IN RESPONSE TO PLAINTIFF'S STATUS REPORT (ECF No. 137.)
GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE
I. BACKGROUND
Larry Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights case pursuant to 42 U.S.C. § 1983, against defendants Sergeant Gonzales, Correctional Officer (C/O) Johnson, C/O Castro, C/O Meier, C/O Flores, and C/O Potzernitz for use of excessive force in violation of the Eighth Amendment; against defendant C/O Scaife for failure to protect Plaintiff in violation of the Eighth Amendment; and against defendant Sgt. Gonzales for retaliation in violation of the First Amendment. (ECF No. 12.)
On September 19, 2022, the Court determined this case was ready for trial and issued the Second Scheduling Order setting dates for a Pretrial Conference and Trial. (ECF No. 126.) On September 29, 2023, the Order was modified, setting the Pretrial Conference for February 6, 2023 at 1:30 p.m. and Trial on April 4, 2023 at 8:30 a.m., before District Judge Ana de Alba. (ECF No. 128.) On November 4, 2022, Defendants filed their pretrial statement. (ECF No. 130.) Plaintiff has not filed his pretrial statement, which was due on October 20, 2022. (Court Record.)
On November 29, 2022, Plaintiff acknowledged that he had not filed his pretrial statement and notified the Court that since September 24, 2022 (on or about), he has been experiencing severe back pain. In light of Plaintiff's severe pain and ongoing medical issues, the Court vacated the scheduled Pretrial Conference and Trial pending Plaintiff's availability for trial. Plaintiff was required to file a written report every three months by the 15th day of the month beginning on April 15, 2023, notifying the Court of the status of his medical condition and his ability to proceed to trial in this case.
On April 12, 2023, Plaintiff filed his first status report. (ECF No. 137.) He reports that he is now classified as “Out to Medical,” housed at the California Health Care Facility in Stockton, California, scheduled for a second surgery and has no access to his legal materials. He cannot stand, walk, or sit, and is confined to a wheelchair. Based on this report, the Court finds that Plaintiff is not able to proceed to trial at this time.
Plaintiff questions when his pretrial statement is due. Plaintiff is advised that he shall be notified at a later time when his pretrial statement is due, sometime after he is able to proceed to trial.
Plaintiff's next status report is due on July 15, 2023 .
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff is not required to submit his pretrial statement until the Court has set a deadline for filing the pretrial statement, sometime after Plaintiff is able to proceed to trial; and
2. Plaintiff is required to file a written report every three months, notifying the Court of the status of his medical condition and his ability to proceed to trial. Plaintiff's next status report is due on July 15, 2023 .
IT IS SO ORDERED.