Austin v. Walker et al

Filing 26

ORDER Denying 25 Plaintiff's Motion for Stay. Signed by Magistrate Judge Jill L. Burkhardt on 3/28/2017. (All non-registered users served via U.S. Mail Service) (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
JAMES AUSTIN,

Case No.: 16-cv-2088 CAB (JLB)
Plaintiff,

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v.

ORDER DENYING PLAINTIFF’S
MOTION FOR STAY

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R. WALKER et al.,

[ECF No. 25]
Defendants.

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Before the Court is Plaintiff’s Motion and Declaration for an Order to Stay and Abey

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the Proceedings to Permit the Preparation and Filing of a Motion for Rehearing of the

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Motion for Appointment of Counsel. (ECF No. 25.) In his motion, Plaintiff asks the Court

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for an order staying the proceedings in this case under Rules 6(b) and 16(b)(4) of the

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Federal Rules of Civil Procedure. (Id. at 1.) As Federal Rules of Civil Procedure 6(b) and

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16(b)(4) address the procedures not for staying a proceeding but for modifying a court’s

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dates and deadlines, the Court interprets Plaintiff’s motion as a request that this case be

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stayed or, alternatively, that this case’s scheduling order be modified.

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I.

Motion for Stay

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“A district court has discretionary power to stay proceedings in its own court.”

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Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). In determining whether to

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grant a motion to stay, “the competing interests which will be affected by the granting or

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refusal to grant a stay must be weighed.” Id. at 1110 (9th Cir. 2005) (quoting CMAX, Inc.

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v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). These interests include “the possible damage
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which may result from the granting of a stay, the hardship or inequity which a party may

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suffer in being required to go forward, and the orderly course of justice measured in terms

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of the simplifying or complicating of issues, proof, and questions of law which could be

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expected to result from a stay.” Id. (quoting CMAX, 300 F.2d at 268). In addition, the

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court must “balance the length of the stay against the strength of the justification given for

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it.” Yong v. Immigration & Naturalization Serv., 208 F.3d 1116, 1119 (9th Cir. 2000).

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“Generally, stays should not be indefinite in nature.” Dependable Highway Exp., Inc. v.

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Navigators Ins. Co., 498 F.3d 1059, 1066–67 (9th Cir. 2007). If a stay is especially long

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or its term is indefinite, a greater showing is required to justify it. Yong, 208 F.3d at 1119.

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Here, Plaintiff requests an indefinite stay of this case while he awaits the receipt of

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his medical and mental health treatment records from the prison’s medical records

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department. (ECF No. 25 at 1.) Plaintiff intends to use the records to support a motion for

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a rehearing of his motion for appointment of counsel, and he requests that the Court stay

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this action until he submits the motion and the Court has the opportunity to rule upon it.

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(Id. at 2.)

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Having reviewed Plaintiff’s motion to stay this case, the Court concludes that

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Plaintiff has not demonstrated that an indefinite stay of this action is warranted. Plaintiff

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previously filed a motion for appointment of counsel (ECF No. 16), and that motion was

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denied for Plaintiff’s failure to show: (1) that he is unable to articulate his claims without

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the assistance of counsel in light of the complexity of the issues involved; and (2) that he

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is likely to succeed on the merits of his claims (ECF No. 22). While Plaintiff asserts in the

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instant motion that proof of his medical and mental disabilities, combined with his

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advanced age, will demonstrate the exceptional circumstances required for the appointment

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of counsel in a civil case (ECF No. 25 at 2), the Court finds that such a showing would

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likely satisfy only one of the two-prongs of the “exceptional circumstances” test. To

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succeed on a motion for appointment of counsel, Plaintiff must also show that he is likely

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to succeed on the merits of his claims. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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2009), cert. denied, 559 U.S. 906 (2010). As stated in the Court’s Order denying Plaintiff’s
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motion for appointment of counsel, Plaintiff has offered no evidence to the effect that he

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has a likelihood of success on the merits, and at this stage, there is very little before the

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Court regarding the merits of Plaintiff’s claims. (ECF No. 22.) The instant motion to stay

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this case fails to show how Plaintiff’s medical and mental health treatment records will

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demonstrate that Plaintiff is likely to succeed on the merits of his claims.

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As Plaintiff has not established that a motion for rehearing of his motion for

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appointment of counsel is likely to be successful, there is little justification to stay this case

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for any length of time, much less for an indefinite period. In addition, staying the

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proceedings for even a short period would not simplify any issues or resolve any questions

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of law with respect to this case. Moreover, staying this action until Plaintiff files a motion

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for rehearing of Plaintiff’s motion for appointment of counsel will cause damage and

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hardship to Defendants, who have an interest in moving this case forward in a timely

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manner. Accordingly, the Court DENIES Plaintiff’s motion to stay this case.

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II.

Motion to Modify Scheduling Order

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Plaintiff’s motion also seeks relief from this case’s scheduling order under Federal

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Rules of Civil Procedure 6(b) and 16(b)(4). (ECF No. 25 at 1.) Rule 6(b) states that

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“[w]hen an act may or must be done within a specified time, the court may, for good cause,

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extend the time.” Fed. R. Civ. P. 6(b). Rule 16(b)(4) states that the dates and times set in

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the operative scheduling order will not be modified except for good cause. Fed. R. Civ. P.

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16(b)(4).

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The Ninth Circuit has explained the “good cause” requirement as follows:

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[The] “good cause” standard primarily considers the diligence of the party
seeking the amendment. The district court may modify the pretrial schedule
if it cannot reasonably be met despite the diligence of the party seeking the
extension. Moreover, carelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief. . . . [T]he focus of the
inquiry is upon the moving party’s reasons for seeking modification. If that
party was not diligent, the inquiry should end.

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal

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citations omitted).

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The instant motion fails to demonstrate good cause for an indefinite extension of the

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dates and deadlines set forth in the operative scheduling order. Although Plaintiff has

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provided evidence to show he is diligently pursuing medical care, Plaintiff has not shown

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any exercise of diligence in attempting to meet the dates and deadlines of the scheduling

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order in this case. Over one month has passed since the denial of Plaintiff’s motion for

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appointment of counsel, and there is no indication that Plaintiff has made any progress in

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litigating this case. In addition, Plaintiff fails to provide any reason why this case cannot

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proceed in accordance with the current schedule while Plaintiff awaits copies of his medical

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and mental health treatment records from the prison’s medical department. While Plaintiff

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alleges that he suffers from anxiety and depression and that he may not be taking the correct

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medication, these ailments did not prevent Plaintiff from successfully filing the instant

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motion, which is well written, organized, and clear. Therefore, the Court sees no reason

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why Plaintiff cannot also engage in discovery at this time.

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DENIES Plaintiff’s request to continue indefinitely the dates and deadlines set forth in the

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scheduling order.

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III.

Accordingly, the Court

Conclusion

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For the reasons stated above, Plaintiff’s Motion and Declaration for an Order to Stay

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and Abey the Proceedings to Permit the Preparation and Filing of a Motion for Rehearing

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of the Motion for Appointment of Counsel (ECF No. 25) is DENIED. For purposes of

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clarification, this does not mean that Plaintiff is precluded from filing a motion for

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rehearing of his motion for appointment of counsel. If Plaintiff desires to file such a

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motion, or to file a second motion for appointment of counsel, he may do so within the

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confines of the operative scheduling order.

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IT IS SO ORDERED.
Dated: March 28, 2017

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16-cv-2088 CAB (JLB)