Polk v. Pittman et al

Filing 50

ORDER Granting Plaintiff's Request for Judicial Notice and Denying Plaintiff's Motion to Stay this Action 49 , signed by Magistrate Judge Barbara A. McAuliffe on 12/13/12. 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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SUSAN MAE POLK,

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CASE NO. 1:11-cv-00728-AWI-BAM PC
Plaintiff,

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v.

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ORDER GRANTING PLAINTIFF’S REQUEST
FOR JUDICIAL NOTICE AND DENYING
PLAINTIFF’S MOTION TO STAY THIS
ACTION

PITTMAN, et al.,
(ECF No. 49)

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Defendants.
/ THIRTY DAY DEADLINE

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Plaintiff Susan Mae Polk (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, filed this action on May 6, 2011.

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(ECF No. 1.) On October 22, 2012, an order issued dismissing certain claims and defendants and

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granting Plaintiff thirty days in which to either file an amended complaint or notify the Court that

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she is willing to proceed on the claims found to be cognizable in the second amended complaint.

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(ECF No. 47.) On December 10, 2012, Plaintiff filed a request for judicial notice and motion to stay

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this action. (ECF No. 49.)

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Plaintiff requests the Court take judicial notice of the motion for a temporary restraining

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order filed in Polk v. Godina, 1:12-cv-01094-LJO-BAM. Under the Federal Rules a court may take

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judicial notice of a fact that is “not subject to reasonable dispute in that it is either (1) generally

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known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

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determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

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201(b). Judicial notice may be taken “of court filings and other matters of public record.” Reyn’s

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Pasta Bella, LLC v. Visa USA, Inc. 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los
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Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Plaintiff’s request for judicial notice is granted and the

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Court takes notice that Plaintiff’s motion for a temporary restraining order was denied on December

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12, 2012. Polk v. Godina, 1:12-cv-01094-LJO-BAM (E.D. Cal. Dec. 12, 2012).

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Plaintiff moves for this action to be stayed until prison officials allow her to access her legal

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files. “The district court has broad discretion to stay proceedings as an incident to its power to

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control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North

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American Co., 299 U.S. 248, 254 (1936)). The party seeking the stay bears the burden of

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establishing the need to stay the action. Clinton, 520 U.S. at 708. If there is a fair possibility that

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the stay will damage the other party, the proponent must make “a clear case of hardship or inequity

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in being required to go forward.” Landis, 299 U.S. at 255. The Court considers the following

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factors when ruling on a request to stay proceedings the possible damage which may result from the

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granting of a stay; the hardship or inequity which a party may suffer in being required to go forward,

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and the orderly course of justice measured in terms of the simplifying or complicating of issues,

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proof, and questions of law which could be expected to result from a stay. Filtrol Corp. v. Kelleher,

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467 F.2d 242, 244 (9th Cir. 1972) (punctuation and citations omitted).

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The incidents upon which this action is proceeding occurred over five years ago in 2007.

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Plaintiff is seeking a stay until she is allowed to access her legal materials. The Court finds that it

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would be prejudicial to the defendants in this action to further delay these proceedings and Plaintiff

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has failed to make “a clear case of hardship or inequity in being required to go forward.” Landis,

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299 U.S. at 255. In this instance, the appropriate vehicle to address Plaintiff’s concerns is a motion

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for an extension of time. Accordingly, Plaintiff’s motion for a stay shall be denied, and Plaintiff will

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be granted an extension of time to respond to the order issued October 22, 2012. If Plaintiff needs

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additional time following the extension granted here, the Court will consider further motions for an

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extension of time setting forth good cause.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s request for judicial notice is GRANTED;

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2.

Plaintiff’s motion for a stay is DENIED;

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3.

Within thirty days from the date of service of this order, Plaintiff shall either file an
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amended complaint or notify the Court that she is willing to proceed on the claims

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found cognizable against Defendants Keith, Logan, Gerber, and Mason; and

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4.

Failure to file a third amended complaint in compliance with this order will result in
this action being dismissed for failure to prosecute.1

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IT IS SO ORDERED.
Dated:
10c20k

December 13, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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The order issued October 22, 2012, ordered Plaintiff to file a fourth amended complaint, however
Plaintiff’s third amended complaint was stricken from the record on June 18, 2012. (ECF No. 36.)

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