VAN ZANT v. FLORIDA PAROLE COMMISSION et al

Filing 141

REPORT AND RECOMMENDATION re 126 MOTION to Stay re 116 Order filed by PHILLIP VAN ZANT: It is recommended - That petitioner's motion for stay be Denied. - - ( Internal deadline for referral to district judge if objections are not filed earlier: 10/27/2009. ) - - Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on September 29, 2009. (cbj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION PHILLIP VAN ZANT, Petitioner, vs. FLORIDA PAROLE COMMISSION Respondent. _____________________________/ REPORT AND RECOMMENDATION This matter is before the court on Petitioner's Motion for Stay, filed pursuant to Rule 8(a)(1) of the Federal Rules of Appellate Procedure (Doc. 126). Petitioner seeks a stay of the habeas proceedings in the district court until the Eleventh Circuit Court of Appeals decides his appeal of the district court's order denying his motion to conduct discovery. A party seeking stay of a district court order pending appeal is required to show the district court: (1) its strong position on the merits of the appeal; (2) irreparable injury if the stay was denied; (3) that a stay would not substantially harm the other parties to the litigation; and (4) that public interests favor a stay. See In re Federal Grand Jury Proceedings (FGJ 91-9), Cohen, 975 F.2d 1488, 1492 (11th Cir. 1992); see also Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006); Fargo Women's Health Organization v. Schafer, 18 F.3d 526, 538 (8th Cir. 1994); Securities Investor Protection Corp. v. Blinder, Robinson & Co., Inc., 962 F.2d 960 (10th Cir. 1992); Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991). In the instant case, Petitioner has failed to show he has a strong position on the merits of the appeal. The order denying discovery is not immediately appealable; therefore, the appeal will likely be dismissed for lack of jurisdiction. See Carpenter v. Mohawk Industries, Inc., 541 F.3d 1048 (11th Cir. 2008). Case No.: 5:05cv208/RS/EMT

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Accordingly, it is respectfully RECOMMENDED: That Petitioner's Motion for Stay (Doc. 126) be DENIED. At Pensacola, Florida this 29th day of September 2009.

/s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES Any objections to these proposed findings and recommendations must be filed within ten days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only. A copy of objections shall be served upon all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No.: 5:05cv208/RS/EMT