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John Thomas v. Ca Department of Corrections and Rehabilitation et al.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 29, 2011

JOHN THOMAS,
PLAINTIFF,
v.
CA DEPARTMENT OF CORRECTIONS AND REHABILITATION ET AL.
DEFENDANTS.

ORDER DISCHARGING ORDER TO SHOW CAUSE ORDER DENYING REQUEST FOR AN EXTENSION OF TIME AS MOOT , ORDER REQUIRING PLAINTIFF TO FILE HIS PRETRIAL STATEMENT BY MAY 6, 2011

(Documents #46 & #48)

Plaintiff John Thomas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendant Cox used excessive force in violation of Plaintiff's Eighth Amendment right. A telephonic trial confirmation hearing is set for May 9, 2011. A jury trial is set for June 21, 2011.

Plaintiff was required to file a pretrial statement on or before March 7, 2011. A review of the court's docket and the court's records reveals that the court has never received Plaintiff's pretrial statement.*fn1 On April 18, 2011, the court ordered Plaintiff to show cause why he failed to file a pretrial statement within fifteen days.

On April 27, 2011, Plaintiff filed a request for an extension of time. In this request, Plaintiff states that he did submit his pretrial statement to the mail room on April 11, 2011. Plaintiff requests more time to obtain prison mailing records so that he can respond to the court's order to show cause.

Plaintiff's April 27, 2011 request informs the court that Plaintiff mailed his pretrial statement to the court, all be it over a month after it was due. The court finds no reason to further delay this action by requiring Plaintiff to obtain official mail records supporting his statements in the April 27, 2011 request. Thus, the order to show cause will be discharged. Because the court is discharging the order to show cause, Plaintiff's request for additional time in which to respond to the order to show cause is moot.

However, the court cannot proceed in this action without Plaintiff's pretrial statement. While Plaintiff alleges he mailed a pretrial statement to the court, the court did not receive the statement. Plaintiff must file a pretrial statement. Because Plaintiff states he already has written his pretrial statement, the court has no reason to provide Plaintiff with extensive time to file his pretrial statement. Plaintiff will be ordered to file his pretrial statement by May 6, 2011.

Accordingly, the court ORDERS that:

1. The April 18, 2011 order to show cause is DISCHARGED;

2. Plaintiff's April 27 2011 request for additional time in which to respond to the order to show cause is DENIED as moot; and

3. Plaintiff is ORDERED to file his pretrial statement by May 6, 2011.

IT IS SO ORDERED.

0m8i78

CHIEF UNITED STATES DISTRICT JUDGE


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