(PC) Solorio v. Sullivan ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 ADRIAN SOLORIO, 1:19-cv-00688-JLT-GSA-PC 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 MOTION TO CONTINUE TRIAL DATE 10 v. (ECF No. 83.) 11 W. SULLIVAN, et al., VACATED: 12 Defendants. Pretrial Conference February 24, 2023 at 1:30 p.m. 13 District Judge Jennifer L. Thurston In Courtroom 4, 7th floor 14 VACATED: 15 Jury Trial March 27, 2023 at 8:30 a.m. 16 District Judge Jennifer L. Thurston In Courtroom 4, 7th floor 17 18 NEW DATES: 19 Pretrial Conference 20 July 24, 2023 at 1:30 p.m. District Judge Jennifer L. Thurston 21 In Courtroom 4 (by Zoom) 22 Jury Trial 23 September 19, 2023 at 8:30 a.m. District Judge Jennifer L. Thurston 24 In Courtroom 4, 7th floor 25 26 I. BACKGROUND 27 Adrian Solorio (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 28 with this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds with 1 Plaintiff’s Second Amended Complaint filed on October 8, 2020, against defendants Correctional 2 Officer (C/O) I. Ottsman and C/O V. Chavez on Plaintiff’s medical claims under the Eighth 3 Amendment; and, against defendants C/O I. Ottsman, C/O V. Chavez, Sergeant Clayton, 4 Sergeant Maciejewski, and Sergeant Cardenas for use of excessive force under the Eighth 5 Amendment. (ECF No. 21.) 6 On September 19, 2022, the Court issued a Second Scheduling Order scheduling a Pretrial 7 Conference for this case on February 24, 2023 at 1:30 p.m., and Jury Trial for March 27, 2023 at 8 8:30 a.m., in Courtroom 4 before District Judge Jennifer L. Thurston. (ECF No. 70.) On 9 December 22, 2022, the Court issued a minute order continuing the Pretrial Conference to 10 February 27, 2023 at 1:30 p.m. before District Judge Jennifer L. Thurston via Zoom. (ECF No. 11 79.) 12 On January 9, 2023, Defendants filed a motion to continue the Trial to a date after May 13 2023. (ECF No. 83.) 14 II. MOTION TO MODIFY SCHEDULING ORDER 15 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 17 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 18 modification of a scheduling order must generally show that even with the exercise of due 19 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 20 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 21 order fails to show due diligence the inquiry should end and the court should not grant the motion 22 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 23 The Court finds good cause to continue the dates for the Pretrial Conference and Jury 24 Trial. Therefore, the motion to modify the Scheduling Order, filed by Defendants on January 25 9, 2023 shall be granted. 26 /// 27 /// 28 1 The Pretrial Conference shall be continued from February 27, 2023 at 1:30 p.m. to July 2 24, 2023 at 1:30 p.m. before District Judge Jennifer L. Thurston via Zoom. 3 The Jury Trial shall be continued from March 27, 2023 at 8:30 a.m. to September 19, 4 2023 at 8:30 a.m. before District Judge Jennifer L. Thurston in Courtroom 4. 5 On December 15, 2022, Plaintiff filed his pretrial statement. (ECF No. 78.) According 6 to the new schedule set out in this order, Defendants’ pretrial statement must be filed on or before 7 July 10, 2023. 8 On December 15, 2022, Plaintiff filed a motion for the attendance of unincarcerated 9 witnesses. (ECF No. 77.) Defendants’ opposition, if any, must be filed on or before July 10, 10 2023. 11 On December 15, 2022, Plaintiff filed a request for the Marshal to serve his 12 unincarcerated witnesses who refuse to testify voluntarily. (ECF No. 77.) According to the new 13 schedule set out in this order, if Plaintiff wishes to have the Marshal serve his unincarcerated 14 witnesses who refuse to testify voluntarily, Plaintiff must submit money orders to the court 15 no later than July 10, 2023. 16 The parties shall appear at the Pretrial Conference with each party connecting remotely 17 either via Zoom video conference or Zoom telephone number. The parties will be provided with 18 the Zoom ID and password by Judge Thurston’s Courtroom Deputy prior to the conference. The 19 Zoom ID number and password are confidential and are not to be shared. Appropriate court attire 20 is required. 21 Counsel for Defendants is required to contact Plaintiff’s institution to arrange for 22 Plaintiff’s participation in the Pretrial Conference. Plaintiff is a state prisoner proceeding pro se 23 and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. 24 /// 25 /// 26 /// 27 /// 28 /// 1 This order represents the Court and the parties’ best estimated schedule to complete this 2 case. Any party unable to comply with the dates outlined in this order shall immediately file an 3 appropriate motion or stipulation identifying the requested modification. 4 The dates set in this order are considered to be firm and will not be modified absent a 5 showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of 6 the civil case docket, this Court disfavors requests to modify established dates. 7 III. CONCLUSION 8 Based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that: 9 1. Defendants’ motion to modify the Court’s Scheduling Order, filed on January 29, 10 2023, is GRANTED; 11 2. The Pretrial Conference scheduled for February 27, 2023 at 1:30 p.m. is continued 12 to July 24, 2003 at 1:30 p.m. before District Judge Jennifer L. Thurston via 13 Zoom; 14 3. The Jury Trial scheduled for March 27, 2023 at 8:30 a.m. is continued to 15 September 19, 2023 at 8:30 a.m. before District Judge Jennifer L. Thurston in 16 Courtroom 4; 17 4. Counsel for Defendants is required to arrange for the participation of Plaintiff at 18 the Pretrial Conference by connecting remotely either via Zoom video conference 19 or Zoom telephone number; 20 5. Defendants shall serve and file a pretrial statement as described in the Second 21 Scheduling Order (ECF No. 70) on or before July 10, 2023; 22 6. In addition to electronically filing a pretrial statement, Defendants shall e-mail the 23 pretrial statement to: jlt@caed.uscourts.gov; 24 7. Defendants’ opposition to Plaintiff’s motion for the attendance of incarcerated 25 witnesses, if any, shall be filed on or before July 10, 2023; 26 8. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse 27 to testify voluntarily, Plaintiff must submit the money orders, as described in 28 /// 1 subsection 4 of the Second Scheduling Order (ECF No. 70), to the court on or 2 before July 10, 2023; and 3 9. The parties are directed to refer back to the provisions of the court’s September 4 19, 2022 Second Scheduling Order for instructions to prepare for trial. 5 IT IS SO ORDERED. 6 7 Dated: January 10, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28