United States District Court, E.D. California
ORDER
DENYING PLAINTIFF'S MOTION TO STAY ACTION (ECF No. 56)
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING
DEFENDANT'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND, AND
DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A
CLAIM (ECF No. 51)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.
Plaintiff
Marcellas Hoffman is a federal prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). This
matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
I.
Introduction
On
October 11, 2019, the assigned Magistrate Judge issued
findings and recommendations recommending that Defendant
Timothy Preston's motion to dismiss be granted without
leave to amend and that this action be dismissed, with
prejudice, for failure to state a claim upon which relief may
be granted under Bivens. (ECF No. 51.) The findings
and recommendations were served on the parties and contained
notice that any objections thereto were to be filed within
thirty (30) days after service. (Id.) Following an
extension of time, Plaintiff filed written objections to the
findings and recommendations on December 2, 2019. (ECF No.
54.) On December 16, 2019, Defendant filed a response to
Plaintiff's objections. (ECF No. 55.)
On
December 16, 2019, Plaintiff filed a “motion to place
case in abeyance, ” which the Court construes as a
motion to stay this action. (ECF No. 56.)
II.
Plaintiff's Motion to Stay Action
The
district court “has broad discretion to stay
proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681, 706
(1997) (citing Landis v. North American Co., 299
U.S. 248, 254 (1936)). A stay is discretionary and the
“party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that
discretion.” Nken v. Holder, 556 U.S. 418,
433-34 (2009). The following factors shall be considered when
determining if a stay is appropriate: (1) “the possible
damage which may result from the granting of a stay”;
(2) “the hardship or inequity which a party may suffer
in being required to go forward, ” and (3) “the
orderly course of justice, measured in terms of the
simplifying or complicating of issues, proof, and questions
of law which could be expected to result from a stay.”
Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th
Cir. 1972) (quoting CMAX, Inc. v. Hall, 300 F.2d 268
(9th Cir. 1962). Further, “[g]enerally, stays should
not be indefinite in nature.” Dependable Highway
Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059,
1066-67 (9th Cir. 2007). If a stay is especially long or its
term is indefinite, a greater showing is required to justify
it. Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir.
2000). The Court should “balance the length of any stay
against the strength of the justification given for
it.” Id.
Here,
Plaintiff moves to stay this action while he attends a
sentencing hearing before a United States District Court in
Philadelphia, Pennsylvania because, while he is at the
hearing, he will not be housed at U.S. Penitentiary Lee, his
address of record, to receive any legal mail and respond to
any court rulings. (ECF No. 56.) Plaintiff asserts that he
will notify the Court and file a motion to have the stay of
this action lifted within thirty days after returning to U.S.
Penitentiary Lee.
However,
at this time, Plaintiff has failed to demonstrate that there
is sufficient justification to support an indefinite stay of
this action while sentencing proceedings are ongoing in
Pennsylvania. Initially, since Plaintiff has already filed
written objections to the pending October 11, 2019 findings
and recommendations to grant without leave to amend
Defendant's motion to dismiss, Defendant's motion to
dismiss is ripe for decision. Further, there are currently no
deadlines in this case requiring Plaintiff to take any
action. Finally, it is Plaintiff's duty to keep his
address of record updated and current so that he can receive
any mail from the Court and Defendant regarding this action
and take appropriate responses to the Court's rulings and
the opposing party's filings. Local Rule 183(b) (“A
party appearing in propria persona shall keep the
Court and opposing parties advised as to his or her current
address.”).
Therefore,
Plaintiff's motion to stay this action, (ECF No. 56), is
denied.
III.
The October 11, 2019 Findings and Recommendations are Adopted
in Full
In his
objections to the October 11, 2019 findings and
recommendations, Plaintiff contends that the undersigned
should decline to adopt the findings and recommendations and
deny Defendant's motion to dismiss because his Eighth
Amendment failure to protect claim is not an improper
expansion of the Bivens remedy.
First,
Plaintiff argues that his Eighth Amendment failure to protect
claim is not a new Bivens context because the U.S.
Supreme Court's decision in Farmer v. Brennan,
511 U.S. 825 (1994), has already recognized an implied Eighth
Amendment failure to protect claim in a Bivens
context. However, the U.S. Supreme Court never explicitly
stated in Farmer that it was recognizing an implied
Bivens Eighth Amendment failure to protect claim.
Additionally, in Ziglar v. Abbasi, __U.S.__, 137
S.Ct. 1843 (2017), the U.S. Supreme Court stated that
Bivens, Davis v. Passman, 442 U.S. 228
(1979), and Carlson v. Green, 446 U.S. 14 (1980)
“represent the only instances in which the
Court has approved of an implied damages remedy under the
Constitution itself.” Ziglar, 137 S.Ct. at
1854-55 (emphasis added). Therefore, since Plaintiff's
Eighth Amendment failure to protect claim is “different
in a meaningful way from” the claims ...