The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On August 28, 2012, defendant Sullivan was granted summary judgment on all claims except for plaintiff's Eighth Amendment claim based on defendant's alleged failure to provide medical care after plaintiff allegedly informed him that plaintiff was ill. (Dkt. No. 63.) This matter is set for jury trial on April 8, 2013, before the undersigned.
On January 25, 2013, defendant filed a motion to dismiss this action based on plaintiff's alleged failure to timely file a pretrial statement. (Dkt. No. 69.) However, on January 28, 2013, plaintiff filed a document styled, "Plaintiff's Notice of Motion and Motion for Pretrial Statements and Supporting Evidence." (Dkt. No. 70.) Liberally construed, this filing is plaintiff's pretrial statement. Plaintiff presented the filing to prison officials for mailing on January 10, 2013, which was timely under the court's December 21, 2012 revised scheduling order. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities). Accordingly, defendant's January 25, 2013 motion to dismiss is denied.
On February 22, 2013, defendant filed a second motion to dismiss.*fn1 Defendant argues that this case should be dismissed based on plaintiff's failure to provide the information required by Local Rule 281, because defendant is prejudiced because he is unable to adequately comply with pretrial and trial preparation. Defendant argues that plaintiff simply recited the allegations of his complaint, and appended his complaint and its exhibits. Defendant contends that plaintiff did not identify witnesses, trial exhibits, issues, or any other required information.
Plaintiff's pretrial statement indicates that plaintiff would serve as his own witness. (Dkt. No. 70 at 1.) However, defendant is correct that plaintiff did not identify specific exhibits he seeks to admit at trial, and failed to provide the additional information required by Local Rule 281. Because plaintiff is proceeding without counsel, the court will grant plaintiff leave to file an amended pretrial statement, and deny defendant's motion.
Plaintiff is advised that his complaint is not evidence. Plaintiff should not append his complaint to his amended pretrial statement. Moreover, because plaintiff's claims were narrowed by the court's ruling on defendant's motion for summary judgment, plaintiff need only address the remaining claim in this action: plaintiff's Eighth Amendment claim based on defendant's alleged failure to provide medical care after plaintiff allegedly informed him that he was ill. Only those exhibits pertinent to such remaining claim should be offered at trial.
Local Rule 281(b) sets forth the information plaintiff should address in his amended pretrial statement:
(b) Form, Contents. The pretrial statement shall state the name of the party or parties on whose behalf it is presented and set forth the nature of the action and the following matters, under the following captions and in the following order:
(1) Jurisdiction - Venue. The factual and statutory basis of federal jurisdiction and venue and whether there is any dispute concerning jurisdiction or venue.
(2) Jury - Non-Jury. Whether the party has demanded a jury trial of all or any of the issues or, if not, whether a demand for jury trial made by any other party is conceded or contested.
(3) Undisputed Facts. A plain, concise statement of the facts that are undisputed.
(4) Disputed Factual Issues. A plain, concise statement of each fact (and any related essential facts) that the party claims or concedes to be in dispute.
(5) Disputed Evidentiary Issues. A plain, concise summary of any reasonably anticipated disputes concerning admissibility of live and deposition testimony, physical and demonstrative evidence and the use of special technology at trial, including computer animation, video discs, and other high technology, and a statement whether each such dispute should be ...