Jackson v. Pletcher et al

Filing 238

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/1/14 RECOMMENDING that plaintiffs motion to stay this action (ECF No. 226) be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND D. JACKSON, 12 13 14 15 No. 2: 11-cv-1157 JAM KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS STEVEN PLETCHER, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. For the following reasons, the undersigned recommends that plaintiff’s 19 motion to stay (ECF No. 226) be denied. 20 On November 6, 2013, the court granted defendants’ motion to dismiss except for the 21 claim that defendant Osman provided inadequate medical care. (ECF No. 220.) On November 22 21, 2013, plaintiff filed a notice of appeal of the November 6, 2013 order. (ECF No. 222.) On 23 December 12, 2013, defendant Osman filed a summary judgment motion. (ECF No. 225.) 24 On January 3, 2014, plaintiff filed a motion to stay this action pending resolution of his 25 appeal of the November 6, 2013 order. (ECF No. 226.) On January 28, 2014, plaintiff filed a 26 motion requesting a certificate of appealability for his appeal. (ECF No. 232.) On March 25, 27 2014, the undersigned recommended that plaintiff’s motion for a certificate of appealability be 28 denied. (ECF No. 236.) 1 On March 25, 2014, the Ninth Circuit Court of Appeals dismissed plaintiff’s appeal on the 1 2 grounds that counsel failed to perfect the appeal as prescribed by the Federal Rules of Appellate 3 Procedure. (ECF No. 237.) Thus, the motion to stay this action pending resolution of the appeal 4 is moot because the Ninth Circuit dismissed plaintiff’s appeal.1 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion to stay this action 5 6 (ECF No. 226) be denied. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: April 1, 2014 16 17 Jack1157.den 18 19 20 21 22 23 24 25 26 27 28 1 Following adoption of these findings and recommendations, the court will set a briefing schedule for defendant Osman’s summary judgment motion. 2

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