Jones v. Corrections Corporation of America

Filing 138

ORDER that Plaintiff's 107 "Motion for Request for Stay[]" is DENIED; Plaintiff's 122 "Notice of Appeal", is OVERRULED; and the Magistrate Judge's order denying plaintiff's motion for appointment of counsel without prejudice (Doc. 110) is AFFIRMED; Plaintiff's 123 "Motion for Request for Stay[]" is DENIED; and Defendant's 126 "Request to Strike Notice of Appeal" is DENIED. Signed by Judge Robert C Broomfield on 05/05/11. (ESL)

Download PDF
1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Darin Jones, 13 Plaintiff, 14 15 vs. Corrections Corporation of America 16 Defendant. ) ) ) ) ) ) ) ) ) ) 17 18 No. CIV 10-2769-PHX-RCB (JRI) O R D E R ) This is a prisoner civil rights action brought pursuant to 19 42 U.S.C. § 1983. 20 before the court in this action. 21 denoted “Notice of Appeal” filed by plaintiff pro se Darin Jones 22 (Doc. 122). 23 Jay R. Irwin, United States Magistrate Judge (“the Magistrate 24 Judge”), 25 Appointment of Counsel[.]” Ord. (Doc. 110) at 12:2-3. 26 pending is plaintiff’s “Motion for Request for Stay[,]” filed 27 simultaneous with his “Notice of Appeal.” 28 Third, Currently there are several matters pending The first is a document Plaintiff is “appealing” the order of the Honorable denying defendant without prejudice Corrections S:\CLR\prisoners\appealaptcounsel “Plaintiff’s Corporation Motion for Also Mot. (Doc. 123). of America (“CCA”) 1 filed a “Request to Strike Plaintiff’s Notice of Appeal[,]” as 2 well as opposing that motion for a stay. 3 1:14-15. 4 Judge’s order denying plaintiff’s motion for appointment of 5 counsel, 6 Proceedings 7 Physical and Mental Examinations[] Under Fed.R.Civ.P. 35[.]” 8 Mot. (Doc. 107) at 1. Lastly, even before the issuance of the Magistrate plaintiff to also Enforce filed a 9 10 Resp. (Doc. 126) at a motion Judgement for “Stay of Fed.R.Civ.P. Under a 62 Background Pursuant to this court’s referral order, among other 11 things, 12 “consider[ing] 13 Counsel[.]” 14 due to his “mental incompetence, the complexity and merits of 15 the case, and his inability to secure counsel.” 16 Stressing that plaintiff “founds his request upon due process 17 protections[,]” the Magistrate Judge devoted the bulk of his 18 order 19 plaintiff’s request. Magistrate to . Judge . . Irwin issued Plaintiff’s Motion Ord. (Doc. 110) at 2:8. discussing the an order for expressly Appointment of Plaintiff sought counsel constitutional Id. at 2:9-11. limitations on Id. at 3:9-10. 20 As the starting point for his analysis, the Magistrate 21 Judge recited the established rule that there is no “general 22 constitutional right for an indigent to have appointed counsel 23 in a civil case[]” in this Circuit. 24 Aldabe 25 Likewise, 26 Supreme 27 litigant has a right to appointed counsel only when, if he 28 loses, he may be deprived of his physical liberty interest.’” v. Aldabe, the Court 616 Magistrate has F.2d Judge “adopted S:\CLR\prisoners\appealaptcounsel 1089, a Id. at 2:13-14 (citing 1093 accurately ‘presumption -2- (9 th Cir. stated that an 1980)). that the indigent 1 Id. at 2:23-24 (quoting Lassister v. Department of Social Servs. 2 of Durham Cty., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 3 (1981)) (emphasis added). 4 explained that “[a]bsent such a deprivation of physical liberty, 5 a constitutional right to appointment of counsel must be found 6 as a corollary to other general constitutional principles.” 7 at 2:25-27. 8 9 Consistent examined with plaintiff’s Accordingly, the Magistrate Judge the foregoing, request for the counsel Magistrate in light Id. Judge of the 10 constitutional principles of “right of access” and “procedural 11 due process[.]” Id. at 2:28 and at 3:9 (emphasis omitted). 12 soundly reasoned that “Plaintiff’s right of access it not at 13 issue, and therefore cannot justify appointment of counsel[]” 14 on that basis. 15 properly 16 announced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 892, 17 47 L.Ed.2d 18 (1976),” i.e., a balancing test. 18 v. Whiting, 881 F.2d 19 identifying the various 20 discussing each, the Magistrate Judge found that plaintiff could 21 not “overcome the presumption against appointed counsel.” 22 (Doc. 110) at 10:13-14. 23 “Plaintiff will not be denied procedural due process in the 24 absence of appointed counsel.” 25 engaged Id. at 3:7-8. in “a due 786, He Next, the Magistrate Judge process 771 n.3 interests analysis (9 th at Cir. stake of the type See Hernandez 1989). and After thoroughly Ord. The Magistrate Judge thus found that Id. at 10:15-16. Prior to the transfer of this action, 1 the United States 26 27 28 1 In accordance with 28 U.S.C. § 1631, this case was transferred here because it “should have been brought in the District of Arizona, where the events at issue occurred.” Ord. (Doc. 73) at 1. S:\CLR\prisoners\appealaptcounsel -3- 1 District 2 application for “in forma pauperis” (“IFP”) status pursuant to 3 28 U.S.C. § 1915. 4 statute allows, the court waived plaintiff’s prepayment of the 5 $350.00 filing fee, but it assessed him an initial partial 6 filing fee, and required monthly installment payments of the 7 remainder from plaintiff’s prisoner trust account. 8 Despite having been previously granted IFP status, plaintiff did 9 not mention section 1915 in his motion, let alone subsection Court, District of Alaska, granted plaintiff’s Doc. 12 (3:10-cv-00054-TMB) at 1. As that Id. at 1-2. 10 (e)(1) 11 “request an attorney to represent any person unable to afford 12 counsel.” thereof. Section 1915(e)(1) authorizes a court to 28 U.S.C. § 1915(e)(1). 13 Nonetheless, undoubtedly adhering to the well-recognized 14 rule that “in general, courts must construe pro se pleadings 15 liberally[,]” Hamilton v. Brown, 630 F.3d 889, 893 (9 th Cir. 16 2001) (citations and internal quotation marks omitted), the 17 Magistrate Judge addressed a “statutory request for counsel 18 under” section 1915(e)(1). 19 omitted). Ord. (Doc. 110) at 10:17 (emphasis 20 After careful consideration, the Magistrate Judge found 21 that plaintiff could show “neither the likelihood of success nor 22 the 23 “‘exceptional circumstances’” standard necessary “to support a 24 request for counsel under” that particular statute. 25 11:20-21; 26 Magistrate Judge denied without prejudice to renew plaintiff’s 27 motion for appointment of counsel. 28 complexity and of at the 10:19. issues necessary” Based upon the to satisfy the Id. at foregoing, the Two days prior to the issuance of that order, plaintiff S:\CLR\prisoners\appealaptcounsel -4- 1 filed a motion for a stay pending resolution of his motion for 2 appointment of counsel. 3 Judge’s order plaintiff filed a “Notice of Appeal[]” in this 4 district court, “chall[e]ng[ing] [the Magistrate] Judge’s denial 5 of 6 Simultaneous with the filing of that Notice, plaintiff filed a 7 second motion for a stay essentially reiterating his reasons for 8 seeking appointment of counsel. his 9 appointment of After the issuance of the Magistrate counsel[.]” Not. (Doc. 122) at 1. Defendant CCA did not address the merits of plaintiff’s 10 “appeal” or his second motion for a stay. 11 taking 12 counsel “is not immediately appealable[,]” and hence “there is 13 no viable reason to stay this case.” 14 2:6. 15 motion for a stay. 16 Court . . . strike the notice of appeal.” the position that the order denying Instead, CCA is appointment of Resp. (Doc. 126) at 2:4; CCA thus reasons that the court should deny plaintiff’s CCA also specifically “requests that the Id. at 2:8. 17 As to plaintiff’s first filed motion for a stay, CCA does 18 not object to a brief extension “to allow the parties to submit 19 their Joint Case Management Plan.” 20 CCA is opposing “the remainder of Plaintiff’s Motion” on two 21 grounds, however. 22 motion is “premature[.]” Id. at 1:23. 23 plaintiff cannot invoke Rule 35 as “a weapon” to “be used to 24 force CCA to pay for Plaintiff’s expert.” Id. at 1:22. 25 26 Resp. (Doc. 118) at 1:20-21. First, CCA asserts that that Second, CCA contends that Id. at 1:24. Discussion I. “Appeal” 27 Evidently the parties are operating under the misconception 28 that plaintiff filed his “appeal” in the Ninth Circuit Court of S:\CLR\prisoners\appealaptcounsel -5- 1 Appeals. 2 2 district court. 3 Judge’s denial of counsel is an “interlocutory order” which 4 “must fit within the ‘collateral order exception to the final 5 judgment rule of 28 U.S.C. § 1291” misses the mark. 6 (Doc. 126) at 1:21-23 (citing Cohen v. Beneficial Industrial 7 Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 8 (1949)). 9 to review “final decisions” of the district courts. He did not; plaintiff filed his “appeal” in this Therefore, CCA’s argument that the Magistrate See Resp. Section 1291 confers jurisdiction upon circuit courts See 28 10 U.S.C. § 1291; see also Ortiz v. Jordan, --- U.S. ---, 131 S.Ct. 11 884, 12 omitted) (“The jurisdiction of a Court of Appeals under 28 13 U.S.C. § 1291 extends only to appeals from . . . final decisions 14 of 15 jurisdictional grant does not come into play in the present 16 case. 17 Judge’s order fits within the collateral order exception to 18 section 1291 is irrelevant at this juncture. 19 its designation as a “Notice of Appeal,” given the statutory 20 framework for a magistrate judge’s authority discussed below, 21 the court will be treating that “Notice” as objections under 891, the 178 L.Ed.2d district 703 courts.”) (2011) (internal Consequently, quotation section marks 1291's Hence, despite what the CCA urges, whether the Magistrate Moreover, despite 22 23 24 25 26 27 28 2 The CCA expressly declares that it is opposing “Plaintiff’s motion to stay this case while this Ninth Circuit considers his appeal[.]” Resp. (Doc. 126) at 1:16-18 (emphasis added). Further, the CCA reasons that because plaintiff’s “appeal” does not “confer jurisdiction on the Ninth Circuit,” the court should strike his “notice of appeal” and deny his motion for a stay. Id. at 2:5-6. Likewise, plaintiff mistakenly relies upon Fed. R. App. 4, governing appeals as of right to a circuit court from a judgment or order of a district court. See Not. (Doc. 122) at 1. Moreover, plaintiff concludes his motion for a stay asserting that “[t]here should be no further actions taken or decided [until] the 9 th Circu[i]t[] [C]ourt of [A]ppeals has made a decision and if denied in the 9 th [C]irc[i]t[] [he] [i]ntend[s] to appeal to the Supreme Court of Appeals [sic].” Id. at 2. S:\CLR\prisoners\appealaptcounsel -6- 1 Fed. R. Civ. P. 72(a). 2 to address such objections. Clearly, this court has the authority See 28 U.S.C. § 636(b)(1)(A). 3 A. 4 28 U.S.C. § 636 delineates the powers of federal magistrate Standard of Review 5 judges. 6 pursuant to section 636(b)(1). 7 of review differs depending upon whether a magistrate judge’s 8 decision 9 636(b)(1)(A), with the exception of eight types of motions, 3 The referral is order in the present case was made Under that statute, the standard non-dispositive or dispositive. Section 10 authorizes 11 matter[s]” subject to “reconsider[ation] thereunder “where it 12 has been shown that the magistrate judge’s order is clearly 13 erroneous or contrary to law.” 14 also Estate of Conners by Meredith v. O’Connor, 6 F.3d 656, 658 15 (9 th Cir. 1993) (“Under 28 U.S.C. § 636(b)(1)(A), a district 16 judge 17 nondispositive pretrial matter pending before the court.”) In 18 discussing “nondispositive matters[,]” Rule 72(a) explains that 19 “[w]hen a pretrial matter not dispositive of a party’s claim or 20 defense is referred to a magistrate judge to hear and decide, 21 the 22 proceedings and, when appropriate, issue a written order stating 23 the decision.” 24 14 may a designate magistrate days magistrate within judge judge a to magistrate must to promptly file “any pretrial 28 U.S.C. § 636(b)(1)(A); see Fed.R.Civ.P. 72(a). which resolve and judge conduct to hear the any required That Rule allows a party serve objections to the 25 26 27 28 3 Specifically excluded from that grant of authority are motions “for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information. . . , to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can by granted, and to involuntarily dismiss an action.” 28 U.S.C. § 636(b)(1)(A). S:\CLR\prisoners\appealaptcounsel -7- 1 magistrate judge’s order. Id. 2 § a 3 magistrate 4 findings of fact and recommendations to the district court on 5 the excepted motions listed in section 636(b)(1)(A). 6 objections are filed, the district court conducts a de novo 7 review of those proposed findings of fact and recommendations. 8 See 28 U.S.C. § 636(b)(1)(C). 636(b)(1)(B), permits judge to Correspondingly, 28 U.S.C. district conduct court hearings and to designate submit a proposed If written 9 To determine the scope of the magistrate judge’s authority 10 and, in turn, the standard of review, it is not enough to 11 “simply 12 636(b)(1)(A). 13 1064, 1068 (9 th Cir. 2004). 14 language of that statute because the eight listed motions “are 15 not an exhaustive list of all the pretrial matters that are 16 excepted from the magistrate judge’s authority.” 17 Indeed, the Ninth Circuit has noted that “any motion not listed, 18 nor analogous to a motion listed in this category, falls within 19 the non-dispositive group of matters which a magistrate may 20 determine.” 21 by Rivera-Guerrero Court). Thus, a court also “must look to the 22 effect order 23 properly characterized as dispositive or non-dispositive of a 24 claim 25 internal quotation marks omitted). look of or to the list of excepted pretrial matters” in See United States v. Rivera-Guerrero, 377 F.3d The court must look beyond the plain Id. at 1067. Id. at 1067-68 (citation omitted) (emphasis added the motion, defense of a in to party.” determine Id. at 1068 whether it (citation is and 26 B. 27 A motion for appointment of counsel is not among those 28 motions Discussion excepted from section 636(b)(1)(A). S:\CLR\prisoners\appealaptcounsel -8- As just explained 1 though, that does not necessarily mean that such a motion is 2 dispositive. 3 appointment of counsel to be nondispositive, subject to review 4 under the clearly erroneous or contrary to law standard. 5 e.g., Tremblay v. Lapier, 2010 WL 3187456 (D.Mont. Aug. 10, 6 2010); 7 (W.D.Wash. Feb. 6, 2009) (finding that a magistrate judge’s 8 “non-dispositive 9 appointment of counsel . . . was neither clearly erroneous nor 10 contrary to law[]”); and Nash v. Waddington, 2007 WL 2461774 11 (W.D.Wash. Aug. 27, 2007) (same). 12 such motions are not dispositive of a party’s claim or defense. 13 Cf. Jones v. Vanderville, 2009 WL 4572880, at *2 (E.D.Cal. Dec. 14 1, 2009) (magistrate judge’s order dismissing the complaint with 15 leave to amend was non-dispositive). Indeed, courts routinely deem orders denying McDonald v. Waddington, order 2009 denying [a WL 302279, prisoner’s] at See, *2-*3 request for That is logical given that 16 Based upon the foregoing, this court, too, considers the 17 Magistrate Judge’s order denying plaintiff Jones’ motion for 18 appointment of counsel to be non-dispositive. 19 conclusion is the fact that the Magistrate Judge explicitly 20 denied that motion “without prejudice.” 21 12:3. 22 with prejudice “in the sense that” the former “does not preclude 23 a subsequent motion based on the same argument.” 24 Excel 25 (D.Ariz. Oct. 14, 2008). 26 order also is non-dispositive “in the sense” that it does not 27 completely 28 counsel at another point during this litigation. Bolstering this Ord. (Doc. 110) at A denial without prejudice is different than a denial Group Flexible foreclose Benefit Plan, WL 4567229, at *3 Therefore, the Magistrate Judge’s plaintiff S:\CLR\prisoners\appealaptcounsel 2008 See Ross v. -9- from seeking appointment See id. of 1 The determination that the Magistrate Judge’s order is non- 2 dispositive means that it is subject to the clearly erroneous 3 or contrary to law standard of 28 U.S.C. § 636(b)(1)(A). 4 also Fed.R.Civ.P. 72(a) (a district court “must consider timely 5 objections and modify or set aside any part of the order that 6 is clearly erroneous or contrary to law[]”). 7 erroneous 8 findings of fact, is significantly deferential, requiring a 9 definite and firm conviction that a mistake has been committed.” 10 Patterson v. Ryan, 2010 WL 4136097, at *2 (D.Ariz. Oct. 13, 11 2010) (citations and internal quotation marks omitted). 12 contrast, the contrary to law standard . . . permits independent 13 review of purely legal determinations by the magistrate judge.” 14 Id. (citations and internal quotation marks omitted). 15 these standards in mind, the court will consider plaintiff's 16 objections to the order denying his motion for appointment of 17 counsel. standard, which applies to a See “The clearly magistrate judge's “By With 18 Those objections consist of a list of 13 statements, mostly 19 pertaining to plaintiff’s complaint, although a few are germane 20 to his motion for counsel. Further, plaintiff asserts that the 21 Magistrate rely 22 Supreme 23 Plaintiff has utterly failed to show that any of the Magistrate 24 Judge’s factual findings were clearly erroneous. 25 shown that any of the Magistrate Judge’s legal conclusions were 26 contrary to law. 27 either 28 careful review of plaintiff’s motion for appointment of counsel, Judge Court showing did case not law. See upon Not. current (Doc. and 122) at applicable 1, ¶ 2). Nor has he Plaintiff would be hard pressed to make given the S:\CLR\prisoners\appealaptcounsel Magistrate - 10 - Judge’s thoughtful and 1 the applicable law, and the relevant facts. 2 absolutely no basis for this court to reconsider any aspect of 3 the 4 plaintiff’s motion for appointment of counsel. Accordingly, the 5 court overrules plaintiff’s objections and affirms 6 Magistrate That ruling Judge’s renders order moot denying defendant’s 7 plaintiff’s “Notice of Appeal.” 8 II. without prejudice that order. 4 motion to strike defendant’s motion to strike (Doc. 126). 9 Thus, there is The court thus denies as moot Motions for a Stay 10 A. 11 Prior to the Magistrate Judge issuing the subject order, March Motion 12 plaintiff 13 enforce a Judgement Under Fed.R.Civ.P. 62 Physical and Mental 14 Examinations[] Under Fed.R.Civ.P. 35[.]” Mot. (Doc. 107). filed a motion entitled “Stay of Proceedings to On 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The court is well aware that in this Circuit a magistrate judge has no authority to issue a dispositive order denying in forma pauperis status unless there has been written consent pursuant to section 636(c). Tripati v. Rison, 847 F.2d 548, 549 (9 th Cir. 1988); see also Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9 th Cir. 1998) (citation omitted) (“[A]n application to proceed in forma pauperis is not a nondispositive matter under Rule 72(a).”); and LRCiv 72.2(a)(4) (“[A] Magistrate Judge may not deny a request for in forma pauperis status unless the person requesting such status has expressly consented in writing to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c).”) There was no written consent here. The Magistrate Judge’s order did invoke the IFP statute, 28 U.S.C. § 1915, as discussed herein. Therefore, at first glance it might appear that the Magistrate Judge exceeded the scope of his statutory authority in denying plaintiff’s request for counsel based upon subsection (e)(1) of that statute. However, the Magistrate Judge clearly had the authority, as he did, to consider whether plaintiff’s request for counsel should be granted under that particular statute. The Magistrate Judge had that authority because in contrast to the denial of informa pauperis status, as explained above, the denial of a request to appoint counsel is non-dispositive. Moreover, as noted at the outset, the transfer of this action from the United States District Court, District of Alaska, that court granted plaintiff’s application for IFP status pursuant to 28 U.S.C. § 1915(b)(1) and (2). Especially given that history, it is obvious that the issue of plaintiff’s IFP status was not before Magistrate Judge Irwin. Rather, he only properly considered the discrete issue of whether the court should “request an attorney to represent” plaintiff under section 1915(e)(1) because plaintiff is “unable to afford counsel.” See 28 U.S.C. § 1915(e)(1). S:\CLR\prisoners\appealaptcounsel - 11 - 1 April 20, 2011, the Magistrate Judge withdrew the referral order 2 as to that particular motion, so that motion is now properly 3 before this court for consideration. 4 Insofar as the court is able to discern, plaintiff’s motion 5 actually seeks three separate forms of relief. 6 is 7 for counsel is ‘resolved[.]’” 8 Second, if his motion for appointment of counsel is denied, 9 plaintiff “asks this court for reconsideration of that denial.” First, plaintiff seeking a “stay [of] all proceedings[] until[] the motion Mot. (Doc. 107) at 1, ¶ 1). 10 Id. 11 plaintiff is seeking a “private examination” as to his “mental 12 status” pursuant to Fed.R.Civ.P. 35. at 1, ¶ 2). Third, “at the defendant[’]s expense[,]” Id. at 2, ¶ 7). 13 Given the limited scope of the stay which plaintiff is 14 seeking, i.e., “until[] the motion for counsel is resolved[,]’” 15 his motion is moot because this court has resolved that issue. 16 Plaintiff’s 17 “reconsideration of th[e] denial” of his motion for appointment 18 of 19 reconsideration. counsel motion also because is this moot court insofar has as found he no is seeking basis for See id. at 1, ¶ 2). 20 As to plaintiff’s request for a private mental examination 21 at defendant’s expense, Rule 35 simply does not encompass such 22 a request. 23 the discretion “under appropriate circumstances, [to] order a 24 party to submit to a physical examination at the request of an 25 opposing party[.]” 26 (N.D.Cal. Jan. 19, 2011). 27 court with authority to appoint an expert to examine a party 28 wishing an To be sure, pursuant to Rule 35 a district court has Callegari v. Lee, 2011 WL 175927, at *7 examination of S:\CLR\prisoners\appealaptcounsel However, “Rule 35 ‘does not vest the himself.’” - 12 - Id. (quoting Smith v. 1 Carroll, 602 F.Supp.2d 521, 526 (D.Del. 2009); see, e.g., Baker 2 v. Hatch, 2010 WL 3212859 at *3 (E.D.Cal. 2010) (finding no 3 authority under Rule 35(a) to grant pro se prisoner plaintiff's 4 request for medical examination); Adams v. Epps, 2008 WL 4861926 5 at *1 (S.D.Miss. 2008) (same); Cabrera v. Williams, 2007 WL 6 2682163 at *2 (D.Neb. Sept.7, 2007) (same)). 7 court denies plaintiff’s motion insofar as he is seeking a 8 court-ordered physical examination at defendant’s expense. 9 10 Therefore, the In short, the court denies in its entirety plaintiff’s motion for a stay (Doc. 107). 11 B. 12 Simultaneously with the filing of his “Notice of Appeal” 13 plaintiff filed a “Motion for Request for Stay[] Under Rule 24 5 14 Intervention 15 Circu[i]t[] Court of Appeals Rules on Appeal from the Court’s 16 Decision” (Doc. 123) at 1 (footnote added). 17 sponte withdraws the reference to the Magistrate Judge as to 18 this motion, and denies it as premature given that currently 19 there is nothing pending in the Ninth Circuit. April Motion to Stop Al[l] Proceeding[]s [U]ntil[] 9 th The court sua 20 Based upon the foregoing, IT IS ORDERED that: 21 (1) Plaintiff’s “Motion for Request for Stay[]” (Doc. 107) 22 23 is DENIED; (2) Plaintiff’s “Notice of Appeal” (Doc. 122), is 24 OVERRULED; and the Magistrate Judge’s order denying plaintiff’s 25 motion for appointment of counsel without prejudice (Doc. 110) 26 27 28 5 Plaintiff’s reliance upon F ED .R.C IV .P. 24 as the basis for this motion is misplaced. That Rule governs intervention in an action and has no relevance whatsoever to this stay motion. S:\CLR\prisoners\appealaptcounsel - 13 - 1 2 3 4 5 6 is AFFIRMED; (3) Plaintiff’s “Motion for Request for Stay[]” (Doc. 123) is DENIED; and (4) Defendant’s “Request to Strike Notice of Appeal” (Doc. 126) is DENIED. DATED this 5 th day of May, 2011. 7 8 9 10 11 12 13 copies to plaintiff pro se and all counsel of record 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\CLR\prisoners\appealaptcounsel - 14 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?