Lipsey v. Norum et al

Filing 186

ORDER signed by Magistrate Judge Deborah Barnes on 6/12/2019 ORDERING within 20 days each party shall file either: (1) a statement that the party finds a stay pending the Rico decision appropriate, or (2) a short memorandum of points and authorities explaining why a stay is not appropriate. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER LIPSEY, Jr.,

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No. 2:18-cv-0362 KJM DB P

Plaintiff,

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v.

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NORUM, et al.,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding through counsel with an action under 42 U.S.C. §

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1983. This case concerns the use of the Guard One security check system at various California

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prisons. The court related this case to five other cases involving use of the Guard One system in

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California prisons: Mathews v. Holland, No. 1:14-cv-1959 KJM DB P; Murillo v. Holland, et al.,

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No. 1:15-cv-0266 KJM DB P; Wilson v. Beard, et al., No. 1:15-cv-1424 KJM DB P; Rico v.

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Beard, et al., No. 2:17-cv-1402 KJM DB P; and Suarez v. Beard, et al., No. 2:18-cv-0340 KJM

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DB P.1 In addition, these Guard One cases have been related to the class action Coleman v.

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Newsom, No. 2:90-cv-0520 KJM DB P. The Guard One system was implemented in the prisons

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pursuant to an order issued in Coleman.

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Counsel recently filed a notice of a seventh related case: Harris v. Sexton, No. 1:18-cv-0080
DAD SAB P. The court has not yet related Harris to the other Guard One cases.
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In Rico, the district court considered defendants’ motion to dismiss based on, among other

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things, qualified immunity. On March 5, 2019, the court held that qualified immunity protects the

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high level supervisory defendants from this suit but that the remaining defendants, those who

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reviewed plaintiff’s appeals and those who conducted the security tests, were not so protected.

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(No. 2:17-cv-1402 KJM DB P, ECF No. 102.) The defendants remaining in the case then

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appealed. (Id., ECF No. 103.) On appeal, they argue that the district court erred in denying them

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qualified immunity. See Appellants’ Mediation Questionnaire, Rico v. Ducart, et al., No. 19-

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15541 (9th Cir. Mar. 29, 2019). The Rico appeal remains pending in the Ninth Circuit. 2

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Defendants in the present case are, primarily, wardens of the various institutions where

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plaintiff contends he was subjected to the Guard One security checks. On January 3, 2018,

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defendants filed a motion to dismiss in which they argue, among other things, that they are

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entitled to qualified immunity. (ECF No. 154.)

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This court finds that the Ninth Circuit’s decision in Rico will very likely affect the

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analysis of the qualified immunity issues in this case. Therefore, a stay of these proceedings may

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be the best use of the parties’ time and judicial resources. This court seeks the parties’ positions

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on the imposition of a stay pending the Ninth Circuit’s Rico decision.

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Accordingly, IT IS HEREBY ORDERED that within twenty days of the date of this order

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each party shall file either: (1) a statement that the party finds a stay pending the Rico decision

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appropriate, or (2) a short memorandum of points and authorities explaining why a stay is not

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appropriate.

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Dated: June 12, 2019

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DLB:9/DB/prisoner-civil rights/lips0362.rico stay

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The appeal was released from mediation on May 6, 2019. Appellants’ opening brief is due July
1, 2019.
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