The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Pletcher's November 28, 2012 motion to stay this action. On December 10, 2012, defendants Osman, Bick and Aguilera (represented by separate counsel) filed a non-opposition to defendant Pletcher's motion to stay. Plaintiff filed an opposition.
For the following reasons, the undersigned recommends that defendant Pletcher's motion be granted.
This action is proceeding on the amended complaint filed May 21, 2012, as to defendants Pletcher, Osman, Bick and Aguilera. Defendants Osman, Bick and Aguilera are medical doctors employed at the California Medical Facility ("CMF"). Defendant Pletcher is a medical doctor employed at the University of California San Francisco Medical Center. Plaintiff alleges that defendants violated his Eighth Amendment right to adequate medical care by failing to adequately treat his frequent and worsening nose bleeds, which ultimately were determined to be caused by squamous cell cancer. Plaintiff alleges that had defendants provided earlier treatment, including a biopsy of his nose, the cancer would not have spread to such a degree and he would not have been required to have a total rhinectomy.
In the pending motion, defendant Pletcher argues that this action should be stayed on the grounds that plaintiff has a case pending against him in state court based on the same facts and legal theories. Defendant Pletcher argues that once the state court action is resolved, the claims against him in the instant action will be barred by the doctrine of res judicata.
Legal Standard for Motion to Stay
For reasons of "wise judicial administration," federal courts may stay a federal action based on "the presence of a concurrent state proceeding." Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15 (1983) (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976)). Exact parallelism between the claims is not required-for application of the Colorado River doctrine, it is enough if the two proceedings are "substantially similar." Nakash v. Marciano, 882 F.2d 1411, 1416--17 (9th Cir. 1989).
A stay in favor of state proceedings is appropriate only under "extraordinary circumstances." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). A court must consider and weigh several factors when determining the propriety of such a stay. These include
(1) whether either court has asserted jurisdiction over a res or property; (2) the relative convenience of the forums; (3) the desirability of avoiding piecemeal litigation; (4) the order in which the forums obtained jurisdiction and the progress of such proceedings; (5) whether state or federal law controls; and (6) whether the state proceeding is adequate to protect the rights of the parties. See Moses H. Cone, 460 U.S. at 21--22; Colorado River, 424 U.S. at 817--19; Nakash, 882 F.2d at 1415. "The factors relevant to a given case are subjected to a flexible balancing test, in which one factor may be accorded substantially more weight than another depending on the circumstances of the case, and 'with the balance heavily weighted in favor of exercising jurisdiction.'" Holder v. Holder, 305 F.3d 854, 870--71 (9th Cir. 2002) (quoting Moses H. Cone, 460 U.S. at 16).
The Ninth Circuit has also recognized a seventh factor that a district court may consider: whether the federal plaintiff is engaged in "forum shopping" or seeking to avoid adverse state court rulings. Nakash v. Marciano, 882 F.2d 1411, 1416--17 (9th Cir. 1989).
In the pending motion, defendant Pletcher states that plaintiff filed an action against him in the San Francisco County Superior Court based on the same facts and claims on which the instant action against him is based. (Dkt. No. 162-3 at 24-34.) Defendants Osman, Bick ...