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Lancaster v. Carey

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


November 1, 2010

DAVID GENE LANCASTER, PLAINTIFF,
v.
TOM L. CAREY, DEFENDANT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

This case was erroneously filed as a petition pursuant to 28 U.S.C. § 2254. Pursuant to the Order filed on August 6, 2008, this case was to be re-designated a civil rights action pursuant to 42 U.S.C. § 1983, should plaintiff file an amended complaint and the appropriate in forma pauperis affidavit (or pay the filing fee). Subsequently, the case was reassigned without the appropriate re-designation although it has long proceeded as a civil rights action, and, as of April 5, 2010, was reassigned back to Senior District Judge Karlton and the undersigned, still without being appropriately designated. The Clerk of the Court will be directed herein to re-designate this case as one brought pursuant to 42 U.S.C. § 1983.

On April 14, 2010, the court issued a Discovery and Scheduling Order, setting discovery and pretrial motion deadlines. The deadline for filing a pretrial dispositive motion remains November 5, 2010. No pretrial conference or trial date has yet been set pending the adjudication of any dispositive motion that may be filed or expiration of time to file any such motion. Notwithstanding, plaintiff has proceeded to file a pretrial statement, a motion to be transferred for trial and a motion for writ of habeas corpus ad testificandum,*fn1 proposed special verdict forms, proposed voir dire and proposed jury instructions. All these documents are prematurely filed and will be vacated without prejudice to their being filed at an appropriate time.

Accordingly, IT IS ORDERED that:

1. The Clerk of the Court is to re-designate this action in the case docket as one brought pursuant to 42 U.S.C. § 1983; and

2. Plaintiff's premature filings at docket #'s 30, 31, 32, 33, 34, 35 and 36 are vacated without prejudice to their being filed at an appropriate time.


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