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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND D. JACKSON,

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No. 2: 11-cv-1157 JAM KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

STEVEN PLETCHER, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding through counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. For the following reasons, the undersigned recommends that plaintiff’s

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motion to stay (ECF No. 226) be denied.

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On November 6, 2013, the court granted defendants’ motion to dismiss except for the

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claim that defendant Osman provided inadequate medical care. (ECF No. 220.) On November

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21, 2013, plaintiff filed a notice of appeal of the November 6, 2013 order. (ECF No. 222.) On

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December 12, 2013, defendant Osman filed a summary judgment motion. (ECF No. 225.)

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On January 3, 2014, plaintiff filed a motion to stay this action pending resolution of his

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appeal of the November 6, 2013 order. (ECF No. 226.) On January 28, 2014, plaintiff filed a

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motion requesting a certificate of appealability for his appeal. (ECF No. 232.) On March 25,

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2014, the undersigned recommended that plaintiff’s motion for a certificate of appealability be

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denied. (ECF No. 236.)
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On March 25, 2014, the Ninth Circuit Court of Appeals dismissed plaintiff’s appeal on the

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grounds that counsel failed to perfect the appeal as prescribed by the Federal Rules of Appellate

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Procedure. (ECF No. 237.) Thus, the motion to stay this action pending resolution of the appeal

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is moot because the Ninth Circuit dismissed plaintiff’s appeal.1
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion to stay this action

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(ECF No. 226) be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 1, 2014

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Jack1157.den

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Following adoption of these findings and recommendations, the court will set a briefing
schedule for defendant Osman’s summary judgment motion.
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