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Armstrong v. Siskiyou County Sheriff's Dep't

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 29, 2009

JERRY ARMSTRONG, PLAINTIFF,
v.
SISKIYOU COUNTY SHERIFF'S DEPARTMENT; BEHR THARSING; ROBERT STEWART, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

PLAINTIFF JERRY ARMSTRONG'S UNOPPOSED APPLICATION TO AMEND PRETRIAL SCHEDULING ORDER AND [PROPOSED] ORDER Hon. Garland E. Burrell, Jr.

Plaintiff Jerry Armstrong, through counsel, hereby applies for an order amending the pretrial scheduling order in this case and continuing the hearing on defendants' motion for summary judgment and on third-party defendant's amended motion to dismiss to October 26, 2009, at 9 a.m. for good cause as set forth below.

1. This is a civil rights action under 42 U.S.C. § 1983 brought by plaintiff Jerry Armstrong. In an order filed July 17, 2008, U.S. Magistrate Judge Gregory G. Hollows appointed counsel John Balazs and Joseph Wiseman as pro bono counsel to represent plaintiff under the court's civil rights pro bono panel.

2. In a "Status (Pretrial Scheduling) Order" dated September 10, 2008, the court set a pretrial schedule which set a last hearing date for motions of October 13, 2009.

3. On June 25, 2009, third-party defendants filed an amended motion to dismiss, which is currently set for a hearing on October 13, 2009, at 9:00 a.m. On August 27, 2009, defendants filed a motion for summary judgment, which is also set for hearing on October 13, 2009, at 9:00 a.m. The motion for summary judgment with supporting memorandum is 38 pages. Supporting declarations and documents to the motion for summary judgment total well over 200 pages.

4. For good cause, pro bono counsel for plaintiff now apply for an order to amend the pretrial scheduling order to permit the last hearing date for motions to be extended two weeks to October 26, 2009. Counsel also apply for an order continuing the due date for plaintiff's opposition to defendants' motion for summary judgment to October 13, 2009, and requests that the hearings on the previously filed motions to dismiss and for summary judgment be continued to October 26, 2009. Philip Price, counsel for defendants, and William Brodbeck, counsel for third-party defendants, have been advised of this application and have no objection.

5. Good cause exists for this application and requested continuance. Both counsel for plaintiff Jerry Armstrong are pro bono. The motion for summary judgment is voluminous and requires substantial time to respond. In addition, when the motion for summary judgment was filed on June 25, 2009, counsel John Balazs was preparing for a first-degree murder trial in federal court in Fresno beginning on July 6, 2009, in United States v. Juwan Ferguson, No. 07-116-LJO, which resulted in a verdict of voluntary manslaughter. Since the motion for summary judgment was filed, counsel John Balazs has also prepared and filed the following briefs in the Ninth Circuit: a 46-page opening brief on July 31, 2009 in United States v. Urie, No. 08-10321, a 46-page opening brief on September 16, 2009 in United States v. Huy Chi Luong, No. 07-10225, and a 13-page reply brief on August 14, 2009, in a complex, murder habeas case in Green v. Kramer, No. 08-15949. Counsel also has represented defendants in four separate wiretap cases, including the recently dismissed defendant General Vang Pao in United States v. Harrison Jack, et. al., No. CR-S 07-266-FCD. Further, pro bono counsel Joseph Wiseman also was preparing for a criminal jury trial that took place in Sacramento County Superior Court from August 3-21, 2009 in People v. Burlew, No. 08-02694. Mr. Wiseman also took a vacation and closed his office from September 4-20, 2009.

6. For these reasons, pro bono counsel respectfully request that the pretrial scheduling order be amended and the hearing on defendants' motion for summary judgment and third-party defendants' motion to dismiss be continued to October 26, 2009, and that plaintiffs' opposition to the motion for summary judgment be due October 13, 2009.

Respectfully submitted,

Dated: September 29, 2009

JOHN BALAZS JOSEPH WISEMAN Attorneys for Plaintiff Jerry Armstrong

ORDER

Plaintiff's above application to amend the pretrial scheduling order filed September 10, 2008 is GRANTED. The pretrial scheduling order is amended so that the last hearing date is October 26, 2009. Plaintiff's opposition to defendants' motion for summary judgment is now due October 13, 2009, and the hearing on defendants' motion for summary judgment and third-party defendant's amended motion to dismiss shall commence on October 26, 2009, at 9:00 a.m. All other aspects of the pretrial scheduling order shall remain the same.

20090929

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