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)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darin Jones,

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Plaintiff,

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15

vs.
Corrections Corporation of
America

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Defendant.

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No. CIV 10-2769-PHX-RCB (JRI)
O R D E R

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This is a prisoner civil rights action brought pursuant to

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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.”

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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

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28

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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.
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1

District

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application for “in forma pauperis” (“IFP”) status pursuant to

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28 U.S.C. § 1915.

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statute allows, the court waived plaintiff’s prepayment of the

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$350.00 filing fee, but it assessed him an initial partial

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filing fee, and required monthly installment payments of the

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remainder from plaintiff’s prisoner trust account.

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Despite having been previously granted IFP status, plaintiff did

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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)

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“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

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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

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“‘exceptional circumstances’” standard necessary “to support a

24

request for counsel under” that particular statute.

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11:20-21;

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Magistrate Judge denied without prejudice to renew plaintiff’s

27

motion for appointment of counsel.

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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
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1

filed a motion for a stay pending resolution of his motion for

2

appointment of counsel.

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Judge’s order plaintiff filed a “Notice of Appeal[]” in this

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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
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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.
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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

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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).

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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

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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

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authority under Rule 35(a) to grant pro se prisoner plaintiff's

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request for medical examination); Adams v. Epps, 2008 WL 4861926

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at *1 (S.D.Miss. 2008) (same); Cabrera v. Williams, 2007 WL

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2682163 at *2 (D.Neb. Sept.7, 2007) (same)).

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court denies plaintiff’s motion insofar as he is seeking a

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court-ordered physical examination at defendant’s expense.

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Therefore, the

In short, the court denies in its entirety plaintiff’s
motion for a stay (Doc. 107).

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B.

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Simultaneously with the filing of his “Notice of Appeal”

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plaintiff filed a “Motion for Request for Stay[] Under Rule 24 5

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Intervention

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Circu[i]t[] Court of Appeals Rules on Appeal from the Court’s

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Decision” (Doc. 123) at 1 (footnote added).

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sponte withdraws the reference to the Magistrate Judge as to

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this motion, and denies it as premature given that currently

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there is nothing pending in the Ninth Circuit.

April Motion

to

Stop

Al[l]

Proceeding[]s

[U]ntil[]

9 th

The court sua

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Based upon the foregoing, IT IS ORDERED that:

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(1) Plaintiff’s “Motion for Request for Stay[]” (Doc. 107)

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is DENIED;
(2)

Plaintiff’s

“Notice

of

Appeal”

(Doc.

122),

is

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OVERRULED; and the Magistrate Judge’s order denying plaintiff’s

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motion for appointment of counsel without prejudice (Doc. 110)

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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.
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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.

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copies to plaintiff pro se and all counsel of record

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