Dillingham v. Garcia

Full title: JERRY DILLINGHAM, Plaintiff, v. J. GARCIA, et al., Defendants.

Court: United States District Court, Eastern District of California

Date published: Jan 23, 2023

1:19-cv-00461-AWI-GSA-PC (E.D. Cal. Jan. 23, 2023)

Opinion

1:19-cv-00461-AWI-GSA-PC

01-23-2023

JERRY DILLINGHAM, Plaintiff, v. J. GARCIA, et al., Defendants.

GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

ORDER VACATING EVIDENTIARY HEARING

GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

VACATED

Evidentiary Hearing

January 27, 2023 at 9:00 a.m.

Courtroom 9

Before SAB

Jerry Dillingham (“Plaintiff”) is a former state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case is scheduled for an Evidentiary Hearing on January 27, 2023, at 9:00 a.m. in Courtroom 9 before Magistrate Judge Stanley A. Boone. By this order, the evidentiary hearing shall be vacated.

On January 9, 2023, the Court issued an order denying Plaintiff's motion for appointment of counsel. (ECF No. 101.) In the order, the Court forewarned Plaintiff that his failure to attend the evidentiary hearing in person on January 27, 2023 would likely result in a recommendation that this case be dismissed in its entirety. (Id.) Additionally, and importantly, in the January 9^thorder, Plaintiff was ordered to inform the Court by no later than January 20, 2023 at 5:00 p.m. whether he intended to be present at the scheduled January 27^th evidentiary hearing and whether he wished to continue to prosecute this case. (Id.)

On January 19, 2023, Plaintiff filed a motion for reconsideration of the court's January 9, 2023, order along with a request that the undersigned recuse himself from this case.¹ (ECF No. 102.) On January 23, 2023, by court order, the Court denied the motion for reconsideration and additionally denied the request for recusal of the undersigned. (ECF No. 103.)

1 Plaintiff also requested the recusal of District Judge Anthony W. Ishii from this case, which shall not be addressed in this order.

As of 5:00 p.m. on January 20, 2023, Plaintiff failed to notify the Court both as to whether he intended to be present at the evidentiary hearing and whether he intended to continue prosecuting this case. (Court Record.) Thus, based upon Plaintiff's failure to comply with the Court's order of January 9, 2023, the Court shall hereby vacate the January 27, 2023 evidentiary hearing and by separate order recommend that this case be dismissed in its entirety.

Based on the foregoing, IT IS HEREBY ORDERED that:

1. The evidentiary hearing scheduled for January 27, 2023 at 9:00 a.m. before Magistrate Judge Stanley A. Boone in Courtroom 9 is hereby VACATED from the Court's calendar; and

2. By separate order, the Court shall recommend that this case be dismissed in its entirety for Plaintiff's failure to comply with the Court's January 9, 2023 order requiring him to notify the Court both as to whether he intended to be present at the January 27th evidentiary hearing and whether he intended to continue prosecuting this case.

IT IS SO ORDERED.