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Raul Montano v. Dr. Solomon


April 14, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on plaintiff's Second Amended Complaint against sole remaining defendant Dr. Richard Tan. The parties have agreed to the jurisdiction of the undersigned magistrate judge for all purposes. See 28 U.S.C. § 636(c); Local Rule 305(a).

The parties have filed separate status reports in compliance with this court's orders filed January 27, 2011, and March 7, 2011. This case is currently scheduled for trial to commence on September 19, 2011, with a pretrial conference scheduled for August 4, 2011. Discovery has closed, and the deadline for filing dispositive motions has expired. However, each party indicates an intent to seek leave of court to supplement the current record and/or to extend deadlines, and both request an early status conference prior to the scheduled pretrial conference.

Plaintiff states that he intends to seek leave of court to amend the operative Second Amended Complaint in order to add information pertaining to a related administrative grievance ("Medical Appeal Log Number CSQ-5-10-01876"). Although the grievance has not been administratively exhausted, plaintiff asserts that it "relates back" to the allegations of his Second Amended Complaint. See Fed. R. Civ. P. 15(a); Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010). (Dkt. No. 62 at 3-4.) Plaintiff states that he "needs no further discovery at this time, and opposes re-opening discovery. . . ."*fn1 (Id. at 4.)

Defendant states that he intends to "ask[] the Court to reopen discovery for a short period of time so that [defendant] can complete the discovery needed to file a combined summary adjudication/judgment motion." (Dkt. No. 59 at 3.) Defendant intends to assert, inter alia, that plaintiff's "cause of action is barred by [his] failure to timely exhaust . . . administrative remedies and the applicable statute of limitations. . . ." (Id. at 2.)

Both parties express willingness to consider an early settlement conference or other form of Alternative Dispute Resolution, and both parties agree to the undersigned magistrate judge acting as the settlement judge. (Dkt. No. 62 at 4-5; Dkt. No. 59 at 3.) Both parties seek a status conference prior to the pretrial conference. (Dkt. No. 62, at 5; Dkt. No. 59 at 3.) Plaintiff requests a Spanish interpreter for any court proceedings. (Dkt. No. 62 at 4.) Based on the foregoing, IT IS HEREBY ORDERED that:

1. A status conference is scheduled before the undersigned on Thursday, May 19, 2011, at 10:00 a.m., in Courtroom No. 25. Arrangements will be made for plaintiff to appear telephonically, and a Spanish interpreter will be provided.

2. On or before May 12, 2011, both parties shall file a separate further status report that addresses the following:

a. Proposed dates for a settlement conference; and

b. Proposed rescheduled dates for pretrial conference and trial.

3. In addition to the matters set forth in Item 2, plaintiff shall:

a. Attach to his Status Report a proposed Third Amended Complaint that incorporates the allegations of his pending administrative grievance;

b. Explain in his Status Report the current status of the subject administrative grievance; if the grievance has not yet been administratively exhausted, explain why amendment of the currently operative Second Amended Complaint would not be futile; and

c. Explain in his Status Report why plaintiff opposes defendant's intended request to reopen discovery, especially why that is true if the court permits plaintiff leave to file a Third Amended Complaint.

4. In addition to the matters set forth in Item 2, defendant shall: a. Address whether defendant opposes plaintiff's request to further amend his complaint and, if so, why;

b. Identify the additional discovery defendant seeks, the estimated time for completing such discovery, and the proposed deadline for filing a dispositive motion; and

c. Explain why such discovery and motion were not completed before expiration of the current deadlines.

5. Each of these matters will be addressed by the court at the May 19, 2011 status conference.


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