JAMES P. O'HARA, Magistrate Judge.
Plaintiff Mark Fraley, who is incarcerated and proceeding pro se, brings this action against defendants for deliberate indifference to his serious medical needs. Before the court is plaintiff's motion for reconsideration of the pretrial order (ECF No. 99).
Before addressing the merits of plaintiff's motion for reconsideration, the court briefly addresses defendants' argument that plaintiff's motion is untimely. The pretrial order was filed on July 12, 2018.
Nevertheless, plaintiff's request for reconsideration of the pretrial order is denied. Plaintiff's motion seeks substantial revisions to the pretrial order. For example, plaintiff requests revisions or deletions of more than half of the 34 stipulated facts listed in the order. Plaintiff also asks the court to modify the summary of relief requested by plaintiff to add a request for non-monetary relief in the form of a "referral of an off-site (Prosethodontics [sic] Specialist) for a new (surgical implanted fixed prothetics [sic]) `Crown' or `/bridge' work."
The court agrees with defendants that these requests come in "the eleventh hour," after plaintiff was given ample opportunities to provide input in the preparation of the pretrial order but often didn't; after the input plaintiff did provide was incorporated into the parties' proposed pretrial order; and after the court carefully discussed with the parties at the pretrial conference changes the court would make to the parties' proposed order, without oral objection by plaintiff. The lateness of plaintiff's current requests and the antecedent pattern of silence by plaintiff are illustrated in the following timeline:
November 1, 2017 The scheduling order was filed, setting April 30, 2018, as the deadline for the parties to submit a jointly proposed pretrial order. ECF No. 77.
April 24, 2018 Defense counsel provided plaintiff a proposed pretrial order. That same day, plaintiff telephoned defense counsel, who asked plaintiff to review the proposed pretrial order and let counsel know his proposed revisions.
April 30, 2018 Defense counsel submitted the proposed pretrial order to the undersigned's chambers as an attachment to an e-mail. The e-mail stated defense counsel had not heard back from plaintiff regarding plaintiff's proposed revisions to the proposed order.
May 14, 2018 The undersigned convened what was scheduled to be a pretrial conference. ECF No. 91. Because
May 14, 2018 Plaintiff e-mailed his objections (dated May 11, 2018) to defense counsel. Although plaintiff logged a number of objections to defendants' draft of the proposed pretrial order,
May 17, 2018 Defense counsel, via letter, asked plaintiff to "decide if any of the proposed [factual] stipulations" were acceptable and if "unacceptable in their current form, but you would find them acceptable if certain errors are corrected," to "be prepared to identify each such stipulation and the corrections" during the parties' scheduled telephone call. ECF No. 103-2.
May 25, 2018 Plaintiff and defense counsel conferred via telephone and discussed revisions requested by plaintiff.
May 29, 2018 Defense counsel provided plaintiff a "marked-up" copy of the proposed pretrial order indicating changes that had been made at plaintiff's request. ECF No. 103-3. Significantly, this copy indicates
June 6, 2018 Defense counsel submitted the revised proposed pretrial order to the undersigned's chambers as an attachment to an e-mail. The e-mail stated defense counsel had not heard back from plaintiff regarding plaintiff's agreement to the revised version. Defense counsel mailed a copy of the e-mail and attachment to plaintiff.
June 26, 2018 The undersigned conducted the pretrial conference. The undersigned discussed with the parties the revisions the court would make to their proposed pretrial order. Court staff mailed the court's draft of the pretrial order to the parties. ECF No. 95.
July 11, 2018 Plaintiff received the court's draft pretrial order. ECF No. 97.
July 12, 2018 The pretrial order was filed. ECF No. 96.
July 31, 2018 Plaintiff filed his motion for reconsideration of the pretrial order,
The court declines, at this late hour, to make the changes plaintiff now requests. The court (and defense counsel) followed a clearly defined pretrial process to ensure the pretrial order was entered by a date sufficiently in advance of summary-judgment deadlines that it would be useful in that stage of the court proceedings. Plaintiff was given ample opportunity to participate in the drafting of the pretrial order—indeed, plaintiff was even given a second chance by the court when he was not prepared to participate in the first-scheduled pretrial conference—but plaintiff largely chose to sit out of the process. The court will not permit plaintiff to subvert the pretrial process by granting the instant motion.
To the extent plaintiff asserts in his reply brief that the court should grant his motion to correct clear errors and prevent manifest injustice, plaintiff has not presented any argument or evidence that support these assertions.
IT IS THEREFORE ORDERED that plaintiff's motion for reconsideration of the pretrial order is denied.
IT IS FURTHER ORDERED that the clerk mail a copy of this order to plaintiff, along with a copy of the court's summary judgment guidelines per plaintiff's request in his motion (ECF No. 99 at 13).