Applegate v. Trausch
Filing
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ORDER for Defendant to File Status Report within Thirty Days signed by Magistrate Judge Gary S. Austin on 1/11/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRIAN APPLEGATE,
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1:15-cv-00811-AWI-GSA-PC
Plaintiff,
v.
ORDER FOR DEFENDANT TO FILE STATUS
REPORT WITHIN 30 DAYS
CHRISTIAN TRAUSCH,
Defendant.
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Plaintiff Brian C. Applegate (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The action is proceeding on
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Plaintiff’s Eighth Amendment and state law claims against Defendant Christian Trausch.
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On March 29, 2016, the Court granted Defendant’s motion to stay the proceedings
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pending resolution of Plaintiff’s writ of mandate in the Sacramento County Superior Court. The
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two inmate appeals that Plaintiff contends exhausted the issues herein were the subject of the
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petition, and the Court granted the stay because the outcome of the petition would impact the
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exhaustion analysis in this action. In granting the stay, the Court ordered Defendant to file a
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status report within ten days of the state court’s ruling on Plaintiff’s petition.
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On April 7, 2016, Plaintiff submitted a filing indicating that he may file a notice of
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voluntarily dismissal if the state court determined that administrative remedies remained. An
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actual request to dismiss has not been filed.
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On July 21, 2016, Defendant filed a status report as directed by this Court. According
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to the report, the state court denied the petition on July 11, 2016, finding that Plaintiff had not
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demonstrated that he submitted the appeals and that staff had received them.
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requested that the stay remain until the state court decision is final. On July 25, 2016, the Court
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issued an order continuing the stay of the action.
Defendant
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On September 15, 2016, Plaintiff submitted a status report indicating that he was
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awaiting the appeal record from the Sacramento Superior Court, after which time he expected
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to pursue a mandamus action at the court of appeals. Plaintiff requested that the stay remain in
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place.
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The Court now requests a status report from Defendant. Accordingly, IT IS HEREBY
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ORDERED that within thirty (30) days of the date of service of this order, Defendant SHALL
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file a status report informing the Court of the current status of this case.
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IT IS SO ORDERED.
Dated:
January 11, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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