Giraldes v. Oania, et al.

Filing 118

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/12/2017 DENYING without prejudice 117 Request for the court to schedule a settlement conference. Further, IT IS HEREBY RECOMMENDED that 113 Motion fo r Extension of Time and/or Stay be denied and that plaintiff be ordered to file a response to 112 Renewed Motion within 7 days of any order adopting these findings and recommendations. Referred to District Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (York, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

LARRY GIRALDES,

11
12
13

No. 2:14-cv-726-JAM-EFB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

OANIA, et al.,

14

Defendants.

15
16

Plaintiff is a state prisoner proceeding pro se with this 42 U.S.C. § 1983 civil rights action.

17

Defendants have filed a “Renewed Motion for Terminating Sanctions or Involuntary Dismissal.”

18

ECF No. 112. Thereafter, on November 3, 2017, plaintiff filed a “Motion for Extension of Time

19

and/or Stay.” ECF No. 113. Defendants oppose a stay or extension.1 ECF Nos. 114, 117. As

20

explained below, the court recommends that plaintiff’s motion be denied and that he be ordered to

21

file a response to defendants’ motion.

22

Plaintiff states that on October 26, 2017, he was placed in administrative segregation for

23

sixteen hours and that unspecified “property” was confiscated. ECF No. 113 at 2. He requests an

24

“extension of time, or stay until [he] can determine when, or if, his property will be returned . . .

25

so he can then resume this cases litigation.” Id. at 3. A party seeking a stay must make out a

26
27
28

1

In his reply brief as to the stay/extension request, plaintiff asks the court to schedule a
settlement conference. ECF No. 117. That request is denied without prejudice. Plaintiff may
renew his request in the event the court denies defendants’ “Renewed Motion for Terminating
Sanctions or Involuntary Dismissal.”
1

1

clear case of hardship or inequity in being required to go forward. Lockyer v. Mirant Corp., 398

2

F.3d 1098, 1109 (9th Cir. 2005). This is not a clear case of hardship. Plaintiff has not shown

3

how any loss of property prevents him from opposing defendants’ motion or otherwise moving

4

forward with this case. He also does not dispute defendants’ representation that none of his legal

5

materials were taken. See ECF Nos. 114, 117. His reply brief, filed in spite of the sixteen hours

6

of administrative segregation, includes arguments responsive to defendants’ motion and further

7

undermines his claimed inability to proceed in this case. Thus, there is no inequity in requiring

8

plaintiff to go forward and a stay is unwarranted.

9
10

Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the court to schedule
a settlement conference (ECF No. 117) is denied without prejudice.

11

Further, IT IS HEREBY RECOMMENDED that plaintiff’s “Motion for Extension of

12

Time and/or Stay,” (ECF No. 113) be denied and that plaintiff be ordered to file a response to

13

defendants’ “Renewed Motion for Terminating Sanctions or Involuntary Dismissal” (ECF No.

14

112) within seven days of any order adopting these findings and recommendations.

15

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

16

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

17

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

18

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

19

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

20

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

21

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

22

DATED: December 12, 2017.

23
24
25
26
27
28
2