Opinion
1:17-cv-00436-ADA-GSA-PC
01-05-2023
LARRY SMITH, Plaintiff, v. J. GONZALES, et al., Defendants.
ORDER VACATING PRETRIAL CONFERENCE AND TRIAL
GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Pretrial Conference: February 6, 2023 1:30 p.m. Judge de Alba Courtroom 1
Jury Trial: April 4, 2023 8:30 a.m. Judge de Alba Courtroom 1
ORDER FOR PLAINTIFF TO FILE A STATUS REPORT EVERY THREE MONTHS BEGINNING ON APRIL 15, 2023, PURSUANT TO THIS ORDER
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 Officers (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.)
This case is scheduled for a Pretrial Conference on February 6, 2023 at 1:30 p.m. and a Jury 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.)
II. PLAINTIFF'S ABILITY TO PROCEED TO TRIAL
Plaintiff has not filed his pretrial statement, which was due on October 20, 2022. (See ECF No. 126.) On November 29, 2022, Plaintiff filed a declaration signed under penalty of perjury acknowledging that he has not complied with the court's order to file a pretrial statement and reporting that since September 24, 2022, he has been experiencing severe back pain and has gone “man down” twelve times. (Plaintiff's Declaration, ECF No. 134 at 1 ¶¶2, 3.) Plaintiff reports that on October 12, 2022, he was sent to an outside hospital where x-rays showed two cysts growing on his spine, an enlarged liver, and gall stones. (Id. at 1 -2 ¶4.) On October 19, 2022, Plaintiff swallowed a razor blade (due to the pain) and was again sent to the hospital. (Id. at 2 ¶6.) Two doctors have given Plaintiff differing opinions about whether he needs surgery. (Id. at 2 ¶7.) He is in pain and uses a wheelchair because he cannot stand, walk or sit on his spine. (Id.)
In light of Plaintiff's severe pain and ongoing medical issues, the Court shall vacate the scheduled Pretrial Conference and Trial pending Plaintiff's availability for trial. Plaintiff shall be required to file a written report every three months by the 15th days of each 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.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The Pretrial Conference scheduled for February 6, 2023 at 1:30 p.m. and Jury Trial scheduled for April 4, 2023 at 8:30 a.m. in this case before District Judge Ana de Alba are VACATED from the Court's calendar;
2. Plaintiff is required to file a written report every three months, by the 15th day of each month beginning on April 15, 2023, notifying the Court of the status of his medical condition and his ability to proceed to trial; and
3. Plaintiff's failure to comply with this order shall result in a recommendation that this case be dismissed.
IT IS SO ORDERED.