Woods v. Carey, et al

Filing 294

ORDER signed by Magistrate Judge Allison Claire on 11/14/13 denying 292 Motion to Stay. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

EARNEST CASSELL WOODS, II,

12
13
14
15

No. 2:04-cv-1225 LKK AC P

Plaintiff,
v.

ORDER

TOM L. CAREY, Warden, et al.,
Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action filed

18

pursuant to 42 U.S.C. § 1983. Defendants Carey and Cervantes have moved to stay this case

19

pending en banc review of Albino v. Baca, 697 F.3d 1023 (9th Cir. 2012), rehearing en banc

20

granted by 709 F.3d 994 (9th Cir. 2013). Albino concerns the standard of review for the

21

affirmative defense of failure to exhaust administrative remedies as well as the burden shifting

22

framework involved in resolving an exhaustion question. ECF No. 292, at 2. Defendants have

23

recently moved for summary judgment on grounds including plaintiff’s alleged failure to exhaust

24

his administrative remedies prior to filing the instant action. ECF No. 293.

25

The motion for summary judgment was just filed, and plaintiff has yet to file his

26

opposition. It may or may not be necessary for this court to decide the exhaustion issue, and the

27

disposition of Albino may or may not materially affect that analysis. In light of these variables

28

and the age of this case, the undersigned finds that further delay is not warranted. Good cause for
1

1
2

a stay has not been demonstrated.
In accordance with the above, IT IS HEREBY ORDERED THAT defendants’ motion to

3

stay (ECF No. 292) is DENIED.

4

DATED: November 14, 2013

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2