Ashker v. Alameida et al

Filing 522


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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 Plaintiff, 9 United States District Court For the Northern District of California 10 11 12 No. 05-03759 CW TODD ASHKER, v. MICHAEL SAYRE, et al., Defendants. / 13 ORDER DENYING DEFENDANT’S MOTION TO STAY COURT ORDER AND GRANTING PLAINTIFF’S MOTION TO COMPEL PAYMENT OF JUDGMENT 14 Defendants Matthew Cate, Secretary of the California 15 Department of Corrections and Rehabilitation (CDCR) and Michael 16 Sayre, M.D., move for a stay of the Court’s March 7, 2011 order 17 granting, in part, Plaintiff’s motion for costs and ordering 18 Defendants to pay $4,228.50 to Plaintiff within fourteen days. 19 se Plaintiff Todd Ashker, an inmate at Pelican Bay State Prisoner 20 (PBSP), opposes the motion and moves to compel payment of the 21 judgment awarded to him. 22 Plaintiff’s opposition to their motion or an opposition to 23 Plaintiff’s motion. 24 decided on the papers. 25 the parties, the Court denies Defendants’ motion and grants 26 Plaintiff’s motion. 27 28 Pro Defendants have not submitted a reply to The matters were taken under submission and Having considered all the papers filed by 1 2 BACKGROUND A jury found that Dr. Sayre knowingly disregarded Plaintiff’s 3 serious medical needs, and awarded Plaintiff $6,500 in damages. 4 February 4, 2010, judgment entered against Dr. Sayre in the amount 5 of $6,500, with interest thereon as provided by 28 U.S.C. § 1961. 6 The judgment also included an order for specific performance 7 against the CDCR based on the finding that it had breached a 2002 8 settlement agreement with Plaintiff. 9 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 10 Sayre did not appeal the judgment against him. 11 Plaintiff filed a notice of cross-appeal regarding several of the 12 Court’s previous rulings. 13 I. Motion for Stay of Order Awarding Plaintiff Costs 14 On March 8, 2010, In deciding whether to stay an order pending appeal, a court 15 must apply four factors: "(1) whether the stay applicant has made a 16 strong showing that he is likely to succeed on the merits; 17 (2) whether the applicant will be irreparably injured absent a 18 stay; (3) whether issuance of the stay will substantially injure 19 the other parties interested in the proceeding; and (4) where the 20 public interest lies." 21 (1987). 22 Hilton v. Braunskill, 481 U.S. 770, 776 Defendants argue that the Hilton factors favor a stay. 23 Relying on the CDCR's opening brief on file with the Ninth Circuit, 24 Defendants contend that the CDCR has made a strong showing that it 25 will succeed on the merits. 26 suffer irreparable harm if it has to pay Plaintiff’s costs now 27 because, if Plaintiff loses on appeal, it may not be able to 28 Defendants argue that the CDCR will 2 1 recover its money from Plaintiff. 2 not suffer harm if the stay is granted because he has pro bono 3 counsel on appeal and, thus, lack of money will not prevent him 4 from meeting any financial obligations. 5 that the public interest in preserving scarce state resources 6 favors a stay. 7 Plaintiff wins his appeal, additional costs would be incurred in 8 re-trying the case, so paying Plaintiff's costs now would be 9 premature. United States District Court For the Northern District of California 10 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. 11 Therefore, they are ordered to pay Plaintiff his award of costs. 12 Defendants request that, in the event the Court denies the stay 13 pending appeal, they be allowed 120 days to comply because the CDCR 14 procedures require up to 120 days to process and deliver payments 15 after such a request is submitted. 16 Defendants, therefore, shall pay to Plaintiff the cost award of 17 $4,228.50 as soon as possible, but no later than 120 days from the 18 date of this order. 19 make this payment to Plaintiff, and shall inform the Court if they 20 fail to do so timely. 21 II. Plaintiff's Motion to Compel Payment of Judgment The Court grants this request. Defendants shall inform the Court when they 22 This motion is unopposed and, therefore, Dr. Sayre must 23 concede that there is no reason for him to have delayed payment of 24 the judgment for over one year. 25 a bond. 26 of this judgment. 27 this order, Dr. Sayre must pay to Plaintiff the sum of $6,500 28 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 3 1 together with pre-judgment and post-judgment interest thereon, as 2 provided by 28 U.S.C. § 1961. 3 when he has made this payment to Plaintiff and shall explain to the 4 Court how he calculated the pre- and post-judgment interest. 5 Defendants shall inform the Court if Dr. Sayre fails to do so 6 timely. 7 held in contempt of Court shall issue. In that event, an order to show cause why he should not be 8 9 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 10 No. 518) and Plaintiff's motion to compel payment of judgment is 11 granted (Docket No. 519). 12 procedures described above. Payment shall be made pursuant to the 13 14 IT IS SO ORDERED. 15 16 Dated: 10/11/2011 CLAUDIA WILKEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 ASHKER, Case Number: CV05-03759 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 ALAMEIDA ET AL et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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. 13 14 17 Todd A. Ashker C58191 Pelican Bay State Prison Box 7500 D1-119 Crescent City, CA 95532 18 Dated: October 11, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 5

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