The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER VACATING JURY TRIAL SET FOR JUNE 22, 2009, AND DISMISSING ACTION, WITH PREJUDICE, BASED ON PLAINTIFF'S NON-COMPLIANCE WITH THE COURT'S SCHEDULING ORDER
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Manuel Juarez, a federal prisoner proceeding pro se and in forma pauperis. This matter is set for jury trial on June 22, 2009, on Plaintiff's remaining claim that Defendants Verdin, Haws, Fischer, and Schmidt violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution when they validated him as a gang member without notice and an opportunity to be heard.
On September 24, 2008, the Court issued a scheduling order requiring Plaintiff to file a pretrial statement on or before April 3, 2009. Pending before the Court is Plaintiff's response to the Court's order to show cause why sanctions should not be imposed for failing to file a pretrial statement in compliance with the scheduling order.
Plaintiff filed this action on May 3, 2004, at which time he was a state prisoner in the custody of the California Department of Corrections and Rehabilitation. Defendants' motion for summary judgment was granted in part and denied in part on September 10, 2008, and on September 24, 2008, the Court issued the scheduling order setting this matter for jury trial and requiring Plaintiff to file his pretrial statement on or before April 3, 2009. Included with the scheduling order was a copy of Local Rule 16-281, which sets forth the information that must be included in the pretrial statement.
Plaintiff's contacts with the Court subsequent to the issuance of the scheduling order is as follows. Plaintiff filed a notice of consent to Magistrate Judge jurisdiction on October 6, 2008, in compliance with the scheduling order, and on October 14, 2008, the Court issued an order inquiring about the parties' interest in a settlement conference. On October 20, 2008, Plaintiff filed a motion seeking the appointment of counsel based on his lack of legal expertise and having only a "GED" education level. (Doc. 122.) Thereafter, on November 3, 2008, Plaintiff responded to the order relating to a settlement conference. In that response, Plaintiff stated he received the order on October 17, 2008, and had recently been placed in administrative segregation so had limited legal property. On November 20, 2008, Plaintiff filed another response, consenting to a settlement conference. The settlement conference was the scheduled for January 20, 2009, and on December 29, 2008, Plaintiff filed a request for instructions on preparing his settlement conference statement. On January 8, 2009, Plaintiff filed a notice of compliance with the order to submit a settlement conference statement to the settlement judge.
On February 11, 2009, Plaintiff filed a motion seeking the appointment of counsel, and in that motion stated that he was due to parole on February 9, 2009, and would be transferred into the custody of the United States Marshal. Plaintiff stated that his legal work was missing, and he did not know the upcoming deadlines in this case. Thereafter, on April 2, 2009, the Court denied the motion for counsel and directed the Clerk's Office to re-serve Plaintiff with the scheduling order.
On April 13, 2009, Plaintiff filed a motion seeking an extension of time to file his pretrial statement, and a continuance of the trial confirmation hearing and jury trial dates. The Court issued an order denying the motion on May 5, 2009. In the order, the Court stated
Plaintiff was transferred from state to federal custody in February 2009, and asserts that the transfer caused his inability to meet the deadline, due to issues accessing the law library and his legal property. However, Plaintiff fails to provide any explanation regarding his failure to prepare and file his pretrial statement between September 24, 2008, and his transfer to federal custody in February 2009. Plaintiff had approximately five months to complete the task of preparing and filing a pretrial statement. In light of the extensive period of time between the issuance of the order and his transfer into federal custody, the Court finds Plaintiff has not shown good cause for his failure to comply with the Court's order, and his request for an extension of time and a continuance is denied, without prejudice. (Doc. 144, 1:25-2:6.) The Court ordered Plaintiff to show cause why sanctions should not be imposed for failing to comply with the scheduling order, and Plaintiff filed his response on May 13, 2009. Thereafter, on May 18, 2009, Plaintiff filed his pretrial statement.
In his response to the order to show cause, Plaintiff attests that he was placed in administrative segregation on October 23, 2008, and deprived of his legal property. (Doc. 147, Juarez Decl.) Plaintiff argues that following his release from segregation, the parties were ordered to notify the Court whether they believed a settlement conference would be beneficial. (Id.) Thereafter, in January of 2009, Plaintiff was transferred to California State Prison-Solano and placed in administrative segregation for the settlement conference. (Id.) Plaintiff was housed at that prison for approximately two weeks and did not have access to his property. (Id.) When Plaintiff was returned to High Desert State Prison, he was housed in segregation without his property. (Id.) Plaintiff was then transferred to Folsom State Prison and placed in segregation without his property. (Id.) Finally, Plaintiff was released from Folsom State Prison to the United States Marshal on February 10, 2009.*fn1 (Id.) Plaintiff argues that he had no control over his lack of access to his legal property, and that he provided notice in his "many" address changes that prison officials were not allowing him access to his legal material so that he could comply with court deadlines. (Id.)
The failure to obey a scheduling order is grounds for the imposition of sanctions. Fed. R. Civ. P. 16(f)(1)(C). Plaintiff was given notice by the Court on May 28, 2004, in the first informational order, that the failure to obey a court order is grounds for sanctions, including dismissal, and the second scheduling order contained notice to Plaintiff that the failure to file a pretrial statement in compliance with the order may result in the imposition of sanctions, including dismissal. (Docs. 8, 118.) Finally, in the order to show cause, the Court warned Plaintiff that the failure to provide a satisfactory ...