(PC) Garraway v. Ciufo

3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA

6 MITCHELL GARRAWAY, 1:17-cv-00533-ADA-GSA-PC 7 Plaintiff, ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE 8 vs. PRETRIAL CONFERENCE (ECF No. 145.)

9 JACQUILINE CIUFO, et al., AND 10 Defendants.

ORDER SCHEDULING TRIAL 12 Pretrial Conference 13 Continued From: October 17, 2022 at 1:30 p.m.

To: May 22, 2023 at 1:30 p.m.

15 District Judge Ana de Alba In Courtroom 1, 8th floor Defendants’ Pretrial Statement Due: 17 May 8, 2023 18 Jury Trial 19 August 1, 2023 at 8:30 a.m.

District Judge Ana de Alba 20 In Courtroom 1, 8th floor

I. BACKGROUND Mitchell Garraway (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 25 (1971). This case now proceeds with Plaintiff’s original Complaint filed on April 17, 2017, against defendants Jacqueline Ciufo (Unit Manager), K. Miller (Corrections Officer), and Lieutenant J. Zaragoza (collectively, “Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. (ECF No. 1.)

3 On May 28, 2021, the Court issued the Second Scheduling Order which scheduled a Telephonic Trial Confirmation Hearing (hereinafter “Pretrial Conference”) for September 26, 2022 at 1:30 p.m. before District Judge Dale A. Drozd, and set a further schedule for this litigation. (ECF No. 132.) Jury trial was not scheduled. On August 5, 2022, the Court continued the Pretrial Conference to October 17, 2022 at 1:30 p.m. (ECF No. 138.) On August 24, 2022, due to the appointment of District Judge Ana de Alba to the bench of the Eastern District of California, this case was assigned from District Judge Dale A. Drozd to District Judge Ana de Alba for all further proceedings. (ECF No. 139.)

11 On September 1, 2022, Plaintiff filed his pretrial statement and motions for the attendance of unincarcerated and incarcerated witnesses for trial. (ECF Nos. 140-142.) On September 8, 2022, Defendants filed an ex parte application to continue the Pretrial Conference and related deadlines. (ECF No. 145.)

15 II. DEFENDANTS’ EX PARTE APPLICATION 16 Defendants request the Court to continue the Pretrial Conference currently set for October 17, 2022 at 1:30 p.m. to May 22, 2023. They also request an extension of the deadline for filing their pretrial statement from October 5, 2022 to May 8, 2022. They request a continuance for two reasons: 1) defense counsel will be on an airplane on the date and time currently scheduled for the Pretrial Conference, returning from international travel spanning October 7 to 17, and will be in trial in Fresno during the two weeks prior (September 26 to October 6). (See declaration of Victoria Boesh, ECF No. 145-1 at 2 ¶¶ 2, 3). 2) Defendants intend to seek leave to file a motion for reconsideration of their motion for judgment on the pleadings,1 based on the United States Supreme Court’s recent decision in Egbert v. Boule, No. 21-147, 2022 WL 2056291 (U.S. June 8, 2022.) Because the motion for reconsideration may resolve this case, Defendants argue that it makes sense to continue the Pretrial Conference to allow the court time to consider and 28 1 Defendants’ motion for judgment on the pleadings was filed on February 26, 2019. (ECF No. 42.) On April 8, 2020, the Court issued an order denying the motion. (ECF No. 106.)

1 resolve that motion. They also propose filing their motion for reconsideration by December 8, 2022.

3 Discussion 4 Defense counsel has shown that she is unable to participate in the Pretrial Conference scheduled for October 17, 2022 at 1:30 p.m. Defendants have also shown good cause why the Pretrial Conference should be continued to allow Defendants time to file a motion for reconsideration, which may resolve the case. Accordingly, Defendants’ application for a continuance shall be granted. The Pretrial Conference shall be continued to May 22, 2023 at 1:30 p.m., and Defendants’ pretrial statement shall be due on May 8, 2023.

10 The parties shall appear at the Pretrial Conference with each party connecting remotely either via Zoom video conference or Zoom telephone number. The parties will be provided with the Zoom ID and password by Judge de Alba’s Courtroom Deputy prior to the conference. The Zoom ID number and password are confidential and are not to be shared. Appropriate court attire is required.

15 Counsel for Defendants is required to contact Plaintiff’s institution to arrange for Plaintiff’s participation in the Pretrial Conference. Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971).

19 III. TRIAL DATE NOW SCHEDULED 20 Jury trial for this case is scheduled for August 1, 2023 at 8:30 a.m. before District Judge Ana de Alba in Courtroom 1 on the 8th floor.

22 IV. CONCLUSION AND ORDER 23 The dates set in this order are considered to be firm and will not be modified absent a showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the civil case docket, this Court disfavors requests to modify established dates.

26 Based on the foregoing, the court HEREBY ORDERS as follows: 27 1. Defendants’ ex parte application to continue the Pretrial Conference in this case, 28 filed on September 8, 2022, is GRANTED; 1 2. The Pretrial Conference, currently scheduled for October 17, 2022 at 1:30 p.m., 2 is continued to May 22, 2023, at 1:30 p.m. before District Judge Ana de Alba in 3 Courtroom 1 on the 8th Floor; 4 3. Defendants shall file and serve a pretrial statement on or before May 8, 2023, as 5 described in the Court’s Second Scheduling Order issued on May 28, 2021; 6 4. In addition to electronically filing a pretrial statement, Defendants shall e-mail the 7 pretrial statement to: [email protected]; 8 5. Counsel for Defendants is required to arrange for the participation of Plaintiff in 9 the Pretrial Conference, as discussed in this order; 10 6. Defendants’ opposition to Plaintiff’s motion for the attendance of incarcerated 11 witnesses, if any, shall be filed on or before May 8, 2023; 12 7. If Plaintiff wishes to obtain the attendance of unincarcerated witnesses who refuse 13 to testify voluntarily, Plaintiff must submit the money orders to the court on or 14 before May 8, 2023, as described in subsection 4 of the Second Scheduling Order 15 issued on May 28, 2021; 16 8. Jury trial for this case is scheduled for August 1, 2023 at 8:30 a.m. before District 17 Judge Ana de Alba in Courtroom 1 on the 8th floor; and 18 9. All other provisions of the Second Scheduling Order issued on May 28, 2021, 19 remain the same.

IT IS SO ORDERED.

22 Dated: September 12, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE