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Parks v. Onyeje

United States District Court, Ninth Circuit

August 20, 2013

STEVEN D. PARKS, Plaintiff,
v.
O. ONYEJE, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR RULE 60(b) GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING (ECF No. 34)ORDER DIRECTING PLAINTIFF TO FILE RESPONSE TO DEFENDANT'S MOTION TO DISMISS (ECF No. 26)ORDER DENYING PLAINTIFF'S MOTION TO STAY PROCEEDINGS PENDING NINTH CIRCUIT RULING (ECF No. 43)

BARBARA A. McAULIFFE, Magistrate Judge.

I. Introduction

Plaintiff Steven D. Parks ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's first amended complaint, filed May 30, 2012, against Defendant Onyeje for deliberate indifference to Plaintiff's Valley Fever in violation of the Eighth Amendment. (ECF No. 13.) The parties have consented to Magistrate Judge jurisdiction. 28 U.S.C. § 636(c).

On December 19, 2012, Plaintiff filed a motion for reconsideration of an order denying his request for sanctions. (ECF No. 34.) The following day, on December 20, 2012, Plaintiff filed a notice of interlocutory appeal. (ECF No. 38.) Thereafter, on January 16, 2013, Plaintiff filed a motion to stay these proceedings pending a ruling on his appeal by the Ninth Circuit. (ECF No. 43.)

Currently before the Court are the following: (1) Plaintiff's motion for stay, filed on January 16, 2013; and (2) Plaintiff's motion for reconsideration, filed on December 19, 2012. (ECF Nos. 34, 43.) Defendant Onyeje has not filed any responses, and the motions are deemed submitted. Local Rule 230(l).

I. Plaintiff's Motion for Stay Pending Ninth Circuit Ruling

Plaintiff filed a notice of interlocutory appeal on December 20, 2012. (ECF No. 38.) The appeal was processed to the Ninth Circuit on December 21, 2012. (ECF No. 39.) While the appeal was pending, Plaintiff filed the instant motion to stay these proceedings pending a ruling from the Ninth Circuit. (ECF No. 43.)

Plaintiff's request for a stay pending a ruling from the Ninth Circuit is no longer necessary. On March 1, 2013, the Ninth Circuit dismissed Plaintiff's appeal for lack of jurisdiction, and issued its formal mandate on March 26, 2013. (ECF Nos. 44, 45.) Subsequently, on May 31, 2013, the Ninth Circuit denied Plaintiff's request for reconsideration. (ECF No. 47.) Accordingly, there is no longer a ruling pending from the Ninth Circuit Court of Appeals, and Plaintiff's motion for stay will be denied as moot.

II. Plaintiff's Motion for Reconsideration

A. Background

On June 5, 2012, the Court screened Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A, and found that it stated an Eighth Amendment claim against Defendant Onyeje. (ECF No. 14.) On June 15, 2012, the Court directed the United States Marshal to serve Defendant Onyeje with summons and the first amended complaint. (ECF No. 16.)

On October 22, 2012, Plaintiff filed a motion for sanctions against Defendant Onyeje for failure to respond to the complaint. (ECF No. 18.) The Court denied Plaintiff's motion for sanctions on October 23, 2012. The Court informed Plaintiff that although service by the United States Marshal had been ordered, no waiver of service or return of service had been filed indicating that Defendant had been served. (ECF No. 19.)

On November 1, 2012, Plaintiff filed objections to the Court's order denying his motion for sanctions. (ECF No. 20.) That same day, a waiver of service was returned executed by Defendant Onyeje. (ECF No. 21.) The Court addressed Plaintiff's objections on November 6, 2012. At that time, the Court indicated that since Defendant waived service in this action, he had sixty days to file an answer to the complaint. Fed.R.Civ.P. 12(a). The Court determined that Defendant Onyeje's answer was not due until December 3, 2012, and ...


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