(PC) Marceleno v. California Department of Corrections and Rehabiliation ( 2022 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 ERIK ABELINO MARCELENO, 1:17-cv-01136-JLT-GSA-PC 7 Plaintiff, ORDER GRANTING DEFENDANT’S EX PARTE APPLICATION FOR EXTENSION 8 vs. OF TIME (ECF No. 54.) 9 SERGEANT J. M. MORA, ORDER CONTINUING TRIAL 10 Defendant. CONFIRMATION HEARING 11 FROM: September 29, 2022 at 1:30 p.m. 12 TO: October 28, 2022 at 1:30 p.m. Before Judge Jennifer L. Thurston 13 via Zoom 14 Jury Trial: TO BE SCHEDULED 15 16 I. BACKGROUND 17 Erik Abelino Marceleno (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds 19 with Plaintiff’s First Amended Complaint filed on July 30, 2018, against defendant Sergeant J. 20 M. Mora (“Defendant”), for use of excessive force in violation of the Eighth Amendment and 21 assault and battery in violation of state law.1 (ECF No. 19.) 22 On March 3, 2021, the Court issued the Second Scheduling Order setting out deadlines 23 for the parties and scheduling a telephonic trial confirmation hearing for September 29, 2022 at 24 1:30p.m. (ECF No. 45.) Pursuant to the Order, Plaintiff’s pretrial statement and motion for the 25 attendance of incarcerated witnesses, if any, were due on July 29, 2022. Plaintiff has not filed a 26 timely pretrial statement, or motion for the attendance of incarcerated witnesses. On August 4, 27 28 1 On June 19, 2019, the court dismissed all other claims from this action, based on Plaintiff’s failure to state a claim. (ECF No. 23.) 1 2022, the court issued an order requiring Plaintiff to file a response within 21 days showing 2 cause why this case should not be dismissed for his failure to file a pretrial statement. (ECF No. 3 53.) To date, Plaintiff has not responded to the order. 4 Defendant’s pretrial statement and opposition, if any, to Plaintiff’s motion for the 5 attendance of incarcerated witnesses is due on August 25, 2022. 6 On August 18, 2002, Defendant Mora filed an ex parte application for extension of time. 7 (ECF No. 54.) 8 II. EX PARTE MOTION FOR EXTENSION OF TIME 9 “When an act may or must be done within a specified time, the court may, for good cause, 10 extend the time.” Fed. R. Civ. P. 6(b)(1). Good cause requires less than manifest injustice but a 11 focus on the diligence of the moving party and that party’s reasons for seeking modification are 12 the court’s focus in determining whether to permit an enlargement of time. Stoddart v. Express 13 Services, 2017 WL 3333994 *1-*2 (E.D. Ca. August 4, 2017) (other citations omitted). “The 14 District court possesses broad discretion to manage its own docket, which includes inherent 15 power to control disposition of causes on its docket with economy of time and effort for itself, 16 for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254–55, 57 S.Ct. 163, 81 17 L.Ed. 153 (1936). 18 Defendant requests an extension of time to file his pretrial statement and to potentially 19 file an opposition to Plaintiff’s motion for the attendance of incarcerated witnesses. Defendant 20 asserts that he is unable to complete and file a thorough pretrial statement until Plaintiff has filed 21 his pretrial statement, or to file an opposition to Plaintiff’s motion until Plaintiff files the motion. 22 The Court finds good cause to grant Defendant’s motion for extension of time. The Court 23 also finds good cause to continue the trial confirmation hearing to a later date. 24 Accordingly, the trial confirmation hearing for this case shall be continued from 25 September 29, 2022 at 1:30 p.m. to October 28, 2022 at 1:30 p.m. before District Judge Jennifer 26 L. Thurston. The hearing shall be conducted via Zoom.2 Defendant’s pretrial statement is now 27 28 2 Before the hearing, the parties shall be provided with information needed to join the hearing via Zoom. 1 due thirty days after Plaintiff files his pretrial statement. In addition to electronically filing a 2 pretrial statement, Defendant shall e-mail the pretrial statement to: jlt@caed.uscourts.gov. Any 3 opposition to Plaintiff’s motion for the attendance of incarcerated witnesses is due thirty days 4 after Plaintiff files the motion. 5 III. CONCLUSION 6 Accordingly, the court HEREBY ORDERS as follows: 7 1. The trial confirmation hearing for this case is continued from September 29, 2022 8 at 1:30 p.m. to October 28, 2022 at 1:30 p.m. before District Judge Jennifer L. 9 Thurston via Zoom; 10 2. Counsel for Defendant is required to arrange for the participation of Plaintiff in 11 the Trial Confirmation Hearing via Zoom; 12 3. Defendant’s ex-parte application for extension of time, filed on August 18, 2022, 13 is granted; 14 4. Defendant’s pretrial statement is now due thirty days after Plaintiff files his 15 pretrial statement; 16 5. In addition to electronically filing a pretrial statement, Defendant shall e-mail the 17 pretrial statement to: jlt@caed.uscourts.gov; 18 6. Any opposition to Plaintiff’s motion for the attendance of incarcerated witnesses 19 is due thirty days after Plaintiff files the motion; and 20 7. All other provisions of the Second Scheduling Order filed on March 3, 2021 21 remain the same. 22 IT IS SO ORDERED. 23 24 Dated: August 19, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28