Ashker v. Alameida et al

Filing 522

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 518 MOTION TO STAY COURT ORDER AND GRANTING PLAINTIFFS 519 MOTION TO COMPEL PAYMENT OF JUDGMENT. (ndr, COURT STAFF) (Filed on 10/11/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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United States District Court
For the Northern District of California

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No. 05-03759 CW

TODD ASHKER,

v.
MICHAEL SAYRE, et al.,
Defendants.
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ORDER DENYING
DEFENDANT’S
MOTION TO STAY
COURT ORDER AND
GRANTING
PLAINTIFF’S
MOTION TO COMPEL
PAYMENT OF
JUDGMENT

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Defendants Matthew Cate, Secretary of the California

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Department of Corrections and Rehabilitation (CDCR) and Michael

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Sayre, M.D., move for a stay of the Court’s March 7, 2011 order

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granting, in part, Plaintiff’s motion for costs and ordering

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Defendants to pay $4,228.50 to Plaintiff within fourteen days.

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se Plaintiff Todd Ashker, an inmate at Pelican Bay State Prisoner

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(PBSP), opposes the motion and moves to compel payment of the

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judgment awarded to him.

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Plaintiff’s opposition to their motion or an opposition to

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Plaintiff’s motion.

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decided on the papers.

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the parties, the Court denies Defendants’ motion and grants

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Plaintiff’s motion.

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Pro

Defendants have not submitted a reply to

The matters were taken under submission and
Having considered all the papers filed by

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BACKGROUND
A jury found that Dr. Sayre knowingly disregarded Plaintiff’s

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serious medical needs, and awarded Plaintiff $6,500 in damages.

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February 4, 2010, judgment entered against Dr. Sayre in the amount

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of $6,500, with interest thereon as provided by 28 U.S.C. § 1961.

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The judgment also included an order for specific performance

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against the CDCR based on the finding that it had breached a 2002

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settlement agreement with Plaintiff.

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CDCR filed a notice of appeal of the judgment against it.

On

On February 12, 2010, the
Dr.

United States District Court
For the Northern District of California

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Sayre did not appeal the judgment against him.

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Plaintiff filed a notice of cross-appeal regarding several of the

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Court’s previous rulings.

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I. Motion for Stay of Order Awarding Plaintiff Costs

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On March 8, 2010,

In deciding whether to stay an order pending appeal, a court

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must apply four factors: "(1) whether the stay applicant has made a

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strong showing that he is likely to succeed on the merits;

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(2) whether the applicant will be irreparably injured absent a

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stay; (3) whether issuance of the stay will substantially injure

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the other parties interested in the proceeding; and (4) where the

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public interest lies."

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(1987).

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Hilton v. Braunskill, 481 U.S. 770, 776

Defendants argue that the Hilton factors favor a stay.

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Relying on the CDCR's opening brief on file with the Ninth Circuit,

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Defendants contend that the CDCR has made a strong showing that it

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will succeed on the merits.

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suffer irreparable harm if it has to pay Plaintiff’s costs now

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because, if Plaintiff loses on appeal, it may not be able to

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Defendants argue that the CDCR will

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recover its money from Plaintiff.

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not suffer harm if the stay is granted because he has pro bono

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counsel on appeal and, thus, lack of money will not prevent him

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from meeting any financial obligations.

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that the public interest in preserving scarce state resources

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favors a stay.

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Plaintiff wins his appeal, additional costs would be incurred in

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re-trying the case, so paying Plaintiff's costs now would be

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premature.

United States District Court
For the Northern District of California

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They argue that Plaintiff will

Furthermore, they argue

In regard to Dr. Sayre, Defendants argue that, if

The Court finds none of Defendants' arguments persuasive.

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Therefore, they are ordered to pay Plaintiff his award of costs.

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Defendants request that, in the event the Court denies the stay

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pending appeal, they be allowed 120 days to comply because the CDCR

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procedures require up to 120 days to process and deliver payments

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after such a request is submitted.

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Defendants, therefore, shall pay to Plaintiff the cost award of

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$4,228.50 as soon as possible, but no later than 120 days from the

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date of this order.

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make this payment to Plaintiff, and shall inform the Court if they

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fail to do so timely.

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II. Plaintiff's Motion to Compel Payment of Judgment

The Court grants this request.

Defendants shall inform the Court when they

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This motion is unopposed and, therefore, Dr. Sayre must

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concede that there is no reason for him to have delayed payment of

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the judgment for over one year.

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a bond.

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of this judgment.

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this order, Dr. Sayre must pay to Plaintiff the sum of $6,500

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He has not sought a stay or posted

The Court will not allow any further delay in the payment
Therefore, within seven days from the date of

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together with pre-judgment and post-judgment interest thereon, as

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provided by 28 U.S.C. § 1961.

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when he has made this payment to Plaintiff and shall explain to the

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Court how he calculated the pre- and post-judgment interest.

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Defendants shall inform the Court if Dr. Sayre fails to do so

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timely.

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held in contempt of Court shall issue.

In that event, an order to show cause why he should not be

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Dr. Sayre shall inform the Court

CONCLUSION
Accordingly, Defendants' motion for a stay is denied (Docket

United States District Court
For the Northern District of California

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No. 518) and Plaintiff's motion to compel payment of judgment is

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granted (Docket No. 519).

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procedures described above.

Payment shall be made pursuant to the

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IT IS SO ORDERED.

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Dated: 10/11/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ASHKER,

Case Number: CV05-03759 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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ALAMEIDA ET AL et al,
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Defendant.
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United States District Court
For the Northern District of California

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on October 11, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Todd A. Ashker C58191
Pelican Bay State Prison
Box 7500
D1-119
Crescent City, CA 95532

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Dated: October 11, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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