McCain v. California Highway Patrol et al

Filing 156

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/12/13 VACATING 152 Findings and Recommendations and RECOMMENDING that this action be stayed; plaintiff be directed to file a status report within 14 days from he r release from commitment; and until ordered otherwise, the defendants be directed to file a status report no later than the 29th of each month, beginning 2/20/13, apprising the court of the status of the criminal case pending against plaintiff. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRILYN McCAIN,

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Plaintiff,

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No. 2:11-cv-1265 KJM AC PS

vs.
MANGHAM, et al.,

ORDER AND

Defendants.

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FINDINGS & RECOMMENDATIONS
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On January 25, 2013, the undersigned issued findings and recommendations

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recommending that this action be dismissed with prejudice because of plaintiff’s failure to, inter

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alia, appear at her December 21, 2012 deposition and at the January 23, 2013 hearing on

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defendants’ joint motion for terminating sanctions. ECF No. 152. It has now come to the

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court’s attention that on December 6, 2012 and pursuant to 18 U.S.C. § 4241(b) and § 4247(b),

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plaintiff was committed to the custody of the Attorney General for a psychiatric or psychological

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examination in a pending criminal action, United States v. McCain (“McCain”), 2:12-cv-0144

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MCE.1 See ECF No. 153. It appears that plaintiff is scheduled to be released to the United

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See United States ex rel. Robinson, 971 F.2d 244, 248 (9th Cir. 1991) (judicial notice
of proceedings in other courts that have a direct relation to the matter at issue is appropriate).
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States Marshal’s Service on February 12, 2013 and transported back to the Eastern District of

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California by March 5, 2013. McCain, 2:12-cr-0144 MCE (E.D. Cal.), ECF No. 52. The reason

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for plaintiff’s non-appearance at her December 21, 2012 deposition and at the January 23, 2013

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is thus now apparent. Therefore, the January 25, 2013 findings and recommendations will be

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vacated.

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Nonetheless, the court will recommend that this matter be stayed. The Supreme

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Court explains that “the power to stay proceedings is incidental to the power inherent in every

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court to control the disposition of the causes on its docket with economy of time and effort for

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itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254 (1936).

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In determining whether to stay an action, courts must weigh competing interests that will be

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affected by the granting or refusal to grant a stay. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th

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Cir. 1962). “Among these competing interests are the possible damage which may result from

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

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

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of issues, proof, and questions of law which could be expected to result from a stay.” Id. (citing

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Landis, 299 U.S. at 254-55).

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In light of the pending criminal action against plaintiff and her current

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commitment, the court finds a stay to be warranted. No damage will result from the stay;

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although the undersigned previously recommended that this action be dismissed, defendants

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Mike’s Towing and Michael D. Olivarez have filed a request to stay that recommendation so that

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they may proceed to the merits of plaintiff’s claims, see ECF No. 154; and temporarily staying

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this action will provide plaintiff with the opportunity to adequately prosecute this case. Thus,

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the court finds that a temporary stay is warranted.
Accordingly, IT IS HEREBY ORDERED that the January 25, 2013 findings and

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recommendations are vacated; and

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IT IS HEREBY RECOMMENDED that:

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1. This action be stayed;

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2. Plaintiff be directed to file a status report within fourteen (14) days from her

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release from commitment;

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3. Until ordered otherwise, the defendants be directed to file a status report no

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later than the 20th of each month, beginning February 20, 2013, apprising the court of the status

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of the criminal case pending against plaintiff.

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These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days 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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir.

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1991).

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DATED: February 12, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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