UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 18, 2013
R. ATHEY, DEFENDANT.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING MOTION, WITHOUT PREJUDICE (Doc. 27)
Plaintiff Michael Laster, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 13, 2011. This action for damages is proceeding against Defendant Athey for violation of the Eighth Amendment. On April 16, 2013, Defendant filed a motion seeking leave to modify the scheduling order to file a motion to dismiss for failure to exhaust. Fed. R. Civ. P. 12(b), 16(b).
Counsel neglects to address in her motion the fact that she requested to participate in the Eastern District of California's Settlement Week Program, and as a direct result, this matter is now set for a settlement conference on June 14, 2013. Given the Court's backlog, if counsel is granted leave to file a motion to dismiss, the motion would not be resolved by June 14, 2013, even assuming it is fully briefed by then. Holding one of the limited slots on the Court's Settlement Week Program calendar for a case in which the Defendant has subsequently taken a position inconsistent with settlement is not an acceptable litigation tactic. At worst, it evidences bad faith and at best, it is discourteous to the Court and to other litigants who might otherwise fill the slot. Furthermore, an unnecessary settlement conference works no small inconvenience for Plaintiff, who must be transported from San Luis Obispo at taxpayer expense and endure the resulting disruption concerning his housing and property access.
Accordingly, Defendant's motion is HEREBY DENIED, without prejudice to refiling with additional briefing on this issue.
IT IS SO ORDERED.
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