United States District Court, E.D. California
ORDER DISCHARGING ORDER TO SHOW CAUSE AND REQUIRING PARTIES TO FILE PRETRIAL STATEMENTS (DOCS. 101, 102)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Akheem Williams ("Plaintiff"), a former prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 17, 2012. This action is proceeding against Defendants Garcia, Valdez, Cortez, Silva, Castro, Day, Stepp, Collier, Torres, Delia, Jr., and Tordsen ("Defendants") for use of excessive physical force, in violation of the United States Constitution. Plaintiff's claims arise out of events which occurred in 2010 and 2011 while he was incarcerated at the Kings County Jail in Hanford, California.
This case is set for a telephonic trial confirmation hearing on November 5, 2014, at 2:00 p.m. and jury trial on December 2, 2014, at 8:30 a.m.
Pursuant to the second scheduling order filed on June 19, 2014, Plaintiff was required to file his pretrial statement on or before September 8, 2014. Plaintiff failed to comply with the order and on September 12, 2014, the Court ordered Plaintiff to show cause why this action should not be dismissed, with prejudice. Plaintiff filed a timely response on September 22, 2014, but he failed to sign his response and it was stricken from the record on September 22, 2014. Fed.R.Civ.P. 11(a); Local Rule 131. On September 26, 2014, Plaintiff filed a timely signed response in compliance with the order striking his unsigned response.
For the reasons set forth below, the order to show cause is discharged at this time.
A. Terminating Sanctions
The Court has the inherent power to control its docket and may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). Given that Plaintiff responded to the order to show cause and he is proceeding pro se, terminating sanctions are not supportable at this juncture. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). However, as discussed below, Plaintiff's reasons for failing to comply with the second scheduling order are wholly without merit and Plaintiff is required to file a pretrial statement. If he fails to do so, the Court will revisit the propriety of terminating sanctions in the face of repeated failure to comply with the Court's directive.
B. Trial Date
First, Plaintiff asserts that he did not agree to set a trial date. The Court has broad discretion to manage its docket, which includes scheduling trial. Fed.R.Civ.P. 16; Hunt v. Cnty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012). In as much as the deadline to file pretrial dispositive motions expired on January 21, 2014, and neither side filed a motion, the next stage in these proceedings is trial. Plaintiff's consent is not a prerequisite to scheduling this case for trial, and furthermore, compliance with scheduling orders is mandatory. Fed.R.Civ.P. 16(b)(4); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
Plaintiff shall be required to file his pretrial statement on or before October 10, 2014. Given that Plaintiff has had almost four months to file his pretrial statement, no further extensions of time will be granted and Plaintiff is warned that the parties' pretrial statements form the basis of the Court's pretrial order. The pretrial order is controlling, and if Plaintiff fails to file his pretrial statement, as he has indicated is his intention, at a minimum he will be precluded from calling witnesses other than himself and introducing exhibits at trial, absent a showing of manifest injustice. Fed.R.Civ.P. 16(d), (e); Local Rules 281, 283. Moreover, the failure to file a pretrial statement in compliance with this order may instead result in terminating sanctions.
In light of the delay caused by Plaintiff's noncompliance, the deadline for Defendants to file their pretrial statement is extended from October 8, 2014, to October 22, 2014.
Plaintiff is required to be available by telephone for the hearing on November 5, 2014, at 2:00 p.m. If Plaintiff's telephone number differs from that in the record, prior to November 5, 2014, he is required to notify Defendants' counsel of the telephone number at which he can be reached for the hearing. Defendants' counsel ...