Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nesbitt v. Wakabayshi

February 8, 2010

ROBERT H. NESBITT JR., PLAINTIFF,
v.
NEIL WAKABAYSHI, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Several motions filed by the parties are pending before the court.

PROCEDURAL HISTORY

On April 20, 2006, the assigned district judge in this case dismissed this action with prejudice in light of plaintiff's second failure to timely file an amended pretrial statement and his failure to prosecute this action. On the same day, the case was closed. On April 30, 2007, plaintiff filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, claiming that he did not have access to his personal and legal property after he was transferred from the Solano County Jail to San Quentin State Prison and then again to Pelican Bay State Prison, and that as a result he was unable to prepare and timely file his amended pretrial statement. On June 21, 2007, the court denied plaintiff's motion. Plaintiff appealed, and on January 15, 2009, the United States Court of Appeals for the Ninth Circuit affirmed in part and vacated in part this court's order denying plaintiff's motion for relief under Rule 60(b) . The Ninth Circuit remanded the case for reconsideration of whether plaintiff was entitled to relief under the catch-all provision of Rule 60(b)(6).

Specifically, the Ninth Circuit noted that this court denied plaintiff's motion because he had been provided several opportunities to comply with the court's order to file a pretrial statement before he was transferred from the Solano County Jail to San Quentin State Prison but failed to do so. However, the Ninth Circuit explained that the relevant inquiry was instead whether plaintiff could have filed his pretrial statement by the court-imposed March 3, 2006, deadline. In the Ninth Circuit's view, plaintiff had alleged that there were circumstances beyond his control that prevented him from doing so. Because Rule 60(b)(6) provides for relief on that basis, the Ninth Circuit remanded the case for reconsideration of whether plaintiff was entitled to relief.

On April 30, 2009, this court granted plaintiff's motion pursuant to Rule 60(b)(6) and ordered the Clerk of the Court to re-open the case. The court also ordered plaintiff to file and serve, within thirty days, an amended pretrial statement along with any motions necessary to obtain the attendance of witnesses at the trial in this action. The court cautioned plaintiff that any failure to comply with that order would result in a recommendation that this action be dismissed.

DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME

I. The Parties' Motions

On June 4, 2009, defense counsel filed a motion to dismiss this case on the ground that plaintiff had failed to timely file an amended pretrial statement in accordance with the court's April 30, 2009, order. In that motion, defense counsel argues that the court has granted plaintiff numerous opportunities to file an amended pretrial statement, but that he has once again failed to do so. In opposition to defendants' motion, plaintiff argues that defendants' own actions have prevented him from timely filing an amended pretrial statement. Specifically, plaintiff contends that the defendants assured him in 2005 that his personal and legal property would transfer with him from the Solano County Jail to San Quentin State Prison. However, according to plaintiff, jail officials actually sent his property to his family in Dallas, Texas. Plaintiff is currently incarcerated at Pelican Bay State Prison and he contends that he still does not have access to his personal and legal property. He claims that prison officials at Pelican Bay will not allow him to receive incoming packages from personal correspondents, so he has been unable to acquire thirteen boxes of his legal materials from his family. In reply, defense counsel contends that plaintiff has had more than three years to obtain his thirteen boxes of legal materials and repeats that the court has given him more than enough time over the course of this case to file an amended pretrial statement.

On the same day defense counsel filed the pending motion to dismiss, plaintiff filed a motion for an extension of time to file an amended pretrial statement in light of his alleged inability to acquire his legal property from his family. In opposition to plaintiff's motion, defense counsel reiterates that plaintiff has had years to determine how to obtain his necessary legal materials, but again has waited until the last minute to file a request for an extension of time instead. Defense counsel contends that the defendants are being extremely prejudiced by plaintiff's repeated failure to comply with court orders. In this regard, defense counsel notes that the alleged incident giving rise to this case occurred now more than eight years ago. In reply, plaintiff repeats that the defendants' actions have prevented him from timely filing an amended pretrial statement because prison officials failed to pack his legal property and transfer it with him to San Quentin State Prison.

II. Discussion

Although plaintiff has failed to timely file an amended pretrial statement once more, this court is conscious of the Ninth Circuit's previous ruling in this case that plaintiff's inability to access his legal materials could have prevented him from filing an amended pretrial statement and could constitute extraordinary circumstances beyond his control. In addition, in lieu of filing his amended pretrial statement in accordance with the court's order, plaintiff did timely file a motion for an extension of time to file his amended pretrial statement.

Under these circumstances, the court will deny defendants' motion to dismiss without prejudice and grant plaintiff one final sixty-day extension of time to file an amended pretrial statement, along with any motions necessary to obtain the attendance of witnesses at trial. The court will also provide plaintiff with a copy of filings in this case that it believes are necessary to allow him to file an amended pretrial statement. Although plaintiff may prefer to review all of his own legal materials before he drafts his amended pretrial statement, he is advised that the court has reviewed Local Rule 281 carefully and determined that the documents accompanying this order are more than adequate to allow him to prepare his amended pretrial statement. In addition, plaintiff is advised that, as a practical matter, a pretrial statement assists the court in drafting its final pretrial order and in outlining the scope of trial, including which witnesses the parties may call to testify, which exhibits the parties may offer as evidence, and which discovery documents the parties may use. The court will not be ruling in favor or against plaintiff on the merits of this case in issuing its final pretrial order. Finally, plaintiff is advised that the pretrial order will include a period for the filing of objections by the parties in the event that plaintiff disagrees with any aspect of the court's pretrial order.

The court will also direct the defendants to file their pretrial statement within thirty days of service of plaintiff's amended pretrial statement. In the event that plaintiff fails to timely file an amended pretrial statement, the court will issue findings and recommendations, recommending dismissal of this action with prejudice due to plaintiff's failure to prosecute the action. The court is providing plaintiff with sufficient time and the necessary materials to prepare his amended pretrial statement. Plaintiff is strongly cautioned that this court shares defense counsel's frustration with the lengthy delays in this case. The court will not entertain any further motions for extensions of time or any additional excuses from plaintiff. Nor will this court allow plaintiff to exploit his pro se incarcerated status to justify any failure to meet deadlines set by the court. Finally, the court will not accept plaintiff's repeated attempts to blame the defendants for any predicament with respect to his alleged lack of access to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.