The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING MISCELLANEOUS MOTIONS (ECF Nos. 107 & 108)
This action, brought pursuant to 42 U.S.C. § 1983, proceeds on the first Amended Complaint filed by plaintiff Santos A. Villegas ("Plaintiff") on August 24, 2009, against defendants Correctional Officer ("C/O") F. Rodriguez, C/O G. Zucker, Sergeant M. Soto, C/O F. Martinez, and C/O L. Knight for excessive force in violation of the Eighth Amendment and violation of the Equal Protection Clause of the Fourteenth Amendment; and defendants L. L. Schulteis (Chief Deputy Warden) and M. Carrasco (Associate Warden) for failure to protect in violation of the Eighth Amendment. (ECF No. 13.)
This case is presently set for trial on March 13, 2012. A telephonic trial confirmation hearing was held on February 6, 2012. (ECF No. 99.) At that time, the parties indicated they were prepared for trial to commence on March 13, 2012.
On February 23, 2012, Plaintiff filed a motion to compel, asking that the Court order the California Correctional Institution to provide supplies for him to copy the exhibits needed for trial. (ECF No. 107.) On February 28, 2012, Plaintiff filed a motion for a continuance, asking that the trial be postponed for sixty days. (ECF No. 108.) Plaintiff's motions are now before the Court.
In his motion to compel, Plaintiff asks that the California Correctional Institution be ordered to provide supplies needed for Plaintiff to prepare and submit his exhibits for his upcoming trial. (ECF No. 107.) Plaintiff alleges that Correctional Officers are not providing him with sufficient copies and legal materials for him to comply with the Court's Pretrial Order to submit five copies of his proposed exhibits by March 8, 2012. (Id.)
However, four days after Plaintiff filed this motion, he submitted five copies of what appear to be his trial exhibits to the Court. This set of documents was submitted without labels and not marked in the manner ordered in the Pretrial Order. (ECF No. 101 at 20).*fn1
Thus, it appears to the Court that Plaintiff was able to obtain sufficient supplies to submit his exhibits. Accordingly, Plaintiff's motion to compel should be denied. If the documents submitted to the Court are not Plaintiff's intended exhibits, he should so inform the Court. Because the documents submitted have not been labeled or identified, the Court will return four of the five sets to Plaintiff. If he wants to use these documents as exhibits at trial, he must mark them in the manner directed in the Court's Pretrial Order and resubmit them prior to trial.
II. MOTION FOR A CONTINUANCE
Plaintiff asks that the Court continue the trial for sixty days so that Plaintiff can obtain witnesses. (ECF No. 108.) Plaintiff did not submit a request for witnesses prior to the deadline for doing so as set forth in the Court's Second Scheduling Order. Plaintiff has not shown good cause for amending that Scheduling Order. Plaintiff having failed to comply with the requirements of the Scheduling Order, Defendants' objection to testimony from incarcerated witnesses is valid. Absent a showing of good cause pursuant to Rule 15(b)(4) of the Federal Rules of Civil Procedure, the Court cannot modify the Second Scheduling Order and no incarcerated witnesses shall be called. The Court's Pretrial Order so provided. (ECF No. 101.)
Accordingly, since the reason for Plaintiff's motion for a continuance previously has been raised and denied, the motion itself must be denied on the same grounds.
It is hereby ORDERED that:
1. Plaintiff's motion to compel (ECF No. ...