Opinion
No. CIV S-04-0339 FCD JFM P.
November 28, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On August 15, 2007, the undersigned issued findings and recommendations recommending that this action be dismissed based on plaintiff's failure to timely file a pretrial statement. On September 12, 2007, plaintiff was granted a thirty day extension of time in which to file objections to the findings and recommendations. On October 16, 2007, plaintiff filed his pretrial statement, a request for the attendance of incarcerated witnesses and a motion in limine.
The Supreme Court has held that the situation of pro se prisoners seeking to meet court deadlines is unique and that therefore a document may be "filed" on the date that it is given by an inmate to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270-72, 275 (1988). See Hostler v. Groves, 912 F.2d 1158, 1160-61 (9th Cir. 1990), cert. denied, 498 U.S. 1120 (1991) (extending the Houston principle to non-habeas civil cases);Faile v. Upjohn Co., 988 F.2d 985, 987-88 (9th Cir. 1993) (extending the Houston principle to the filing of any document that is served pursuant to Fed.R.Civ.P. 5). Plaintiff's recent filings were placed in prison officials' hands for mailing on October 3, 2007, and are therefore timely.
Good cause appearing, the findings and recommendations will be vacated. Defendants previously filed a pretrial statement on December 14, 2006. In light of plaintiff's recent filings, defendants will be provided an opportunity to either file a revised pretrial statement, or a notice that they intend to rest on their prior pretrial statement. The court will issue a pretrial order on the papers; trial confirmation hearing and jury trial dates will be rescheduled in the pretrial order. Plaintiff's October 16, 2007 motion for the attendance of incarcerated witnesses will also be addressed in the pretrial order.
Plaintiff's November 16, 2007 motion in limine is premature. Motions in limine must be filed seven days prior to the trial. This motion will be denied without prejudice to its renewal closer to trial.
IT IS HEREBY ORDERED that:
1. The August 15, 2007 findings and recommendations are vacated.
2. Within twenty days from the date of this order, defendants shall either file a revised pretrial statement or a notice of their intent to rest on the December 14, 2006 pretrial statement.
3. Plaintiff's November 16, 2007 motion in limine is denied without prejudice.