Scherffius v. Smith et al

Filing 54

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/12/2017 DENYING as moot plaintiff's 50 motion for an extension of time to file a response to defendants' summary judgment motion; and the Clerk shall ass ign a district court judge to this case. IT IS RECOMMENDED that plaintiff's 51 motion for a stay be granted; this case be stayed; and plaintiff be ordered to notify the court within 120 days about the status of his health and whether the stay should remain in place. Assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)

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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 MICHAEL E. SCHERFFIUS, 12 Plaintiff, 13 14 No. 2:13-cv-1277 DB P v. ORDER AND FINDINGS AND RECOMMENDATIONS CHRISTOPHER SMITH, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 18 action under 42 U.S.C. § 1983. He alleges defendants were deliberately indifferent to his medical 19 needs. Plaintiff moves for a stay of these proceedings based on his current medical issues. (ECF 20 No. 51.) His motion includes an August 14, 2017 letter from his doctor describing major surgery 21 plaintiff will undergo and plaintiff’s many health problems. (Id. at 3.) The doctor noted that a 22 reassessment in 90 days would be appropriate. Defendants do not oppose plaintiff’s motion. (See ECF No. 53.) They suggest a 23 24 reevaluation of the need for a stay within 120 days. The court finds good cause for a stay of these 25 proceedings. Accordingly, IT IS HEREBY ORDERED that: 26 27 28 1. Plaintiff’s August 22, 2017 motion for an extension of time to file a response to defendants’ summary judgment motion (ECF No. 50) is denied as moot; 1 1 2. Because all parties have not consented to the jurisdiction of a magistrate judge, the Clerk 2 of the Court shall assign a district judge to this case; 3 Further, IT IS RECOMMENDED that 4 1. Plaintiff’s motion for a stay (ECF No. 51) be granted; 5 2. This case be stayed; and 6 3. Plaintiff be ordered to notify the court within 120 days about the status of his health 7 8 9 and whether the stay should remain in place. These findings and recommendations will be 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 days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. The document should be captioned 12 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 13 objections shall be filed and served within seven days after service of the objections. The parties 14 are advised that failure to file objections within the specified time may result in waiver of the 15 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: September 12, 2017 17 18 19 20 21 22 23 24 25 DLB:9 DLB1/prisoner-civil rights/ stay 26 27 28 2

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