Clark v. McGuire et al

Filing 53

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/12/15 ORDERING that the jury trial set for 04/06/15 before Judge Mendez is vacated. Also, RECOMMENDING that defendants motion to stay 50 be granted; and this action be stayed pending resolution of defendant's appeal in the 9th circuit. MOTION to STAY 50 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUREECE CLARK, 12 13 14 No. 2: 12-cv-2159 JAM KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS THOMAS McGUIRE, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner, proceeding without counsel, with a civil rights action 18 pursuant to 42 U.S.C. § 1983. This action is set for jury trial before the Honorable John A. 19 Mendez on April 6, 2015. Pending before the court is defendant McGuire’s motion to stay. (ECF 20 No. 50.) For the following reasons, the undersigned recommends that defendant’s motion to stay 21 be granted. 22 On August 29, 2014, the court denied defendant McGuire’s summary judgment motion on 23 grounds that he was not entitled to qualified immunity. (ECF No. 40.) Defendant McGuire 24 appealed that order to the Ninth Circuit Court of Appeals. (ECF No. 43.) That appeal is now 25 pending before the Ninth Circuit. 26 In the context of interlocutory appeals based on qualified immunity, the district court is 27 automatically divested of jurisdiction to proceed with trial pending appeal unless the district court 28 finds that the defendant’s claim of immunity is frivolous or has been waived, and certifies such in 1 1 writing. See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992). The district court has not 2 certified that defendant’s appeal is frivolous or has been waived. Accordingly, this court is 3 divested of jurisdiction to proceed to trial. On these grounds, the undersigned recommends that 4 defendant’s motion to stay be granted. 5 6 7 8 Accordingly, IT IS HEREBY ORDERED that the jury trial set for April 6, 2015, before the Honorable John A. Mendez is vacated; IT IS HEREBY RECOMMENDED that defendant’s motion to stay (ECF No. 50) be granted; and this action be stayed pending resolution of defendant’s appeal by the Ninth Circuit. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: March 12, 2015 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?