United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR STAY (ECF
S. AUSTIN UNITED STATES MAGISTRATE JUDGE.
Hammler (“Plaintiff”) is a state prisoner
proceeding pro se with this civil rights action
pursuant to 42 U.S.C. § 1983. On August 23, 2019,
Plaintiff filed the Complaint commencing this action. (ECF
December 18, 2019, the court denied Plaintiff leave to
proceed with this case in forma pauperis pursuant to
28 U.S.C. § 1915, based on his accrual of three
“strikes” for the dismissals of three prior
cases, Hammler v. Hough, Hammler v. Kernan,
and Hammler v. Hudson. (ECF No. 10.) Plaintiff was
ordered to pay the $400.0 filing fee for this action within
thirty days or this case will be dismissed without prejudice.
January 8, 2020, Plaintiff filed a motion to stay the
proceedings in this case pending resolution of his appeals to
the Ninth Circuit in Hammler v. Hough and
Hammler v. Kernan.
power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. N. Am.
Co., 299 U.S. 248, 254 (1936); accord Stone
v. I.N.S., 514 U.S. 386, 411 (1995) (“[W]e have
long recognized that courts have inherent power to stay
proceedings and ‘to control the disposition of the
causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.'” (Breyer,
J., dissenting) (quoting Landis, 299 U.S. at 254)).
A court's decision to grant a stay is discretionary,
“dependent upon the circumstances of the particular
case.” Nken v. Holder, 556 U.S. 418, 432
(2009). Deciding whether to grant a stay pending the outcome
of other proceedings “calls for the exercise of
judgment, which must weigh competing interests and maintain
an even balance.” Landis, 299 U.S. at 254-55.
The movant bears the burden of showing the circumstances
justify a stay. Id. at 433-34; see
Clinton v. Jones, 520 U.S. 681, 708 (1997). The
party seeking such a stay must “make out a clear case
of hardship or inequity in being required to go forward, if
there is even a fair possibility that the stay for which he
prays will work damage to some one [sic]
else.” Id. at 255.
considering whether to grant a stay, this court must weigh
several factors, including “ the possible damage
which may result from the granting of a stay,  the
hardship or inequity which a party may suffer in being
required to go forward, and  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.” CMAX, Inc. v. Hall,
300 F.2d 265, 268 (9th Cir. 1962) (citing Landis,
299 U.S. at 254-55).
states that the pending decisions on appeal in Hammler v.
Hough and Hammler v. Kernan will affect the
litigation of the present case. Plaintiff also argues that
dismissal of the present case will result in multiple
filings, purportedly because Plaintiff will file the case
again. Also, Plaintiff asserts that he cannot afford to pay
the $400.00 filing fee at this time, but he may be able to
pay the filing fee, in time, if a stay is granted.
has not met his burden of showing the circumstances justify a
stay. Plaintiff has not shown that it is certain, or even
likely, that resolution of the pending issues in Hammler
v. Hough and Hammler v. Kernan will affect the
district court's decision in this case. Nor has Plaintiff
made out a clear case of hardship or inequity in being
required to go forward without a stay, even considering that
a stay may result in damage to someone else. In moving for
this stay, Plaintiff's only apparent argument is that if
the stay is not granted he will most likely suffer dismissal
of this case based on the court's finding that he has
accrued three “strikes” under 28 U.S.C. §
1915(g) and is not entitled to proceed with this case in
forma pauperis. Under this outcome Plaintiff will be
allowed to refile the case because the dismissal will be
without prejudice. (See ECF No. 10 at 3:14-15
(“Plaintiff's failure to pay the required filing
fee as ordered will result in the dismissal of this action
without prejudice.”)) Where Plaintiff has not
identified any particular harm beyond the cost of re-filing
this action, the Ninth Circuit has held that “being
required to defend a suit, without more, does not constitute
a ‘clear case of hardship or inequity' within the
meaning of Landis.” Lockyer v. Mirant
Corp., 398 F.3d 1098, 1112 (9th Cir. 2005).
Plaintiff has not met his burden of justifying the imposition
of a stay, Plaintiff's motion for stay shall be denied.
on the foregoing, IT IS HEREBY ORDERED that Plaintiff's
motion for stay, ...