(PC) Tran v. Smith ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BINH CUONG TRAN, Case No. 1:19-cv-00148-DAD-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SERVICE OF SUMMONS AND 13 v. COMPLANT AND MOTION FOR STAY 14 S. SMITH, et al., (ECF No. 13) 15 Defendants. 16 17 I. 18 INTRODUCTION 19 Plaintiff Binh Cuong Tran is a state prisoner proceeding pro se in this civil rights action 20 pursuant to 42 U.S.C. § 1983. 21 On July 29, 2019, the undersigned screened Plaintiff’s complaint and found that Plaintiff 22 stated a cognizable claim against Defendants Munsel and Jericoff for deliberate indifference in 23 violation of the Eighth Amendment, but failed to state any other cognizable claims against any 24 other defendants. (ECF No. 10.) Plaintiff was ordered to either file a first amended complaint or 25 notify the court of his willingness to proceed only on the cognizable claim. (Id. at 8-9.) On 26 August 7, 2019, Plaintiff notified the Court of his willingness to proceed only on the cognizable 27 claim identified by the Court. (ECF No. 11.) 28 /// 1 Consequently, on August 9, 2019, the undersigned issued findings and recommendations 2 that this action proceed on Plaintiff’s complaint against Defendants Munsel and Jericoff for 3 deliberate indifference in violation of the Eighth Amendment, and that all other claims and 4 defendants be dismissed. (ECF No. 12.) The findings and recommendations were served on 5 Plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) 6 days after service. (Id. at 5.) No objections were filed within the allotted time. The August 9, 7 2019 findings and recommendations are pending before the District Judge assigned to this case. 8 Currently before the Court is Plaintiff’s document titled “Clarification and Instructions for 9 Serving the Summons and Complaint in Civil Action[,]” filed on September 18, 2019, which the 10 Court construes as a motion to serve Defendants Munsel and Jericoff with the summons and 11 complaint and a motion to stay this action. (ECF No. 13.) 12 II. 13 MOTION FOR SERVICE OF SUMMONS AND COMPLAINT 14 In his motion, Plaintiff states that, while the Court has found that he has stated a 15 cognizable claim against Defendants Munsel and Jericoff, the Court has not issued an order to 16 serve the summons and complaint on Defendants. (Id. at 1.) Plaintiff requests that the Court 17 serve the summons and complaint on the Defendants or provide him with the necessary forms and 18 instructions so that he can serve the summons and complaint on the Defendants. (Id. at 1-2.) 19 However, Plaintiff’s motion is premature. The Court is required to screen complaints 20 brought by prisoners seeking relief against a governmental entity or officer or employee of a 21 governmental entity. 28 U.S.C. § 1915A(a). Therefore, service of process will only be ordered 22 after Plaintiff’s complaint has been screened and the District Judge has determined that Plaintiff’s 23 complaint states one or more cognizable claims against one or more Defendants. In this case, 24 while the undersigned has screened Plaintiff’s complaint and issued findings and 25 recommendations that this action proceed on Plaintiff’s complaint against Defendants Munsel and 26 Jericoff for deliberate indifference, the District Judge has not issued an order adopting those 27 findings and recommendations. Therefore, at this time, issuance and service of the summons and 28 complaint is inappropriate. 1 Additionally, if the District Judge finds that Plaintiff’s complaint states a cognizable claim 2 against one or more of the named defendants, the undersigned will issue an order finding service 3 of the complaint appropriate and directing that service of the defendant or defendants shall 4 proceed under the Court’s E-Service pilot program for civil rights cases in the Eastern District of 5 California. “E-Service” means that instead of having plaintiffs fill out service paperwork for the 6 United States Marshal to mail to the defendants or through personal service, the Court will 7 provide paperwork regarding the defendants electronically to the California Department of 8 Corrections and Rehabilitation (CDCR) and the California Attorney General’s Office, each of 9 which has agreed to participate in this program. If those entities are unable to effectuate service, 10 then the matter will be referred to the United States Marshal for service. Plaintiff need not 11 attempt service on the defendants and need not request waiver of service. 12 Consequently, Plaintiff’s motion for service of summons and complaint is denied as 13 premature. 14 III. 15 MOTION TO STAY ACTION 16 Plaintiff moves to “pause this case” for an unstated amount of time because he is currently 17 “working on another civil action case,” which is at the discovery stage and is months away from 18 trial. (ECF No. 13, at 2.) Plaintiff asserts that he is “pro se” and that he cannot “handle two civil 19 cases at the same time.” (Id.) While Plaintiff’s motion does not state the length of the requested 20 stay, presumably, Plaintiff would like to stay this action until the litigation of his other currently 21 pending civil case, No. 1:17-cv-1260 MCE DB P, is completed. 22 The district court “has broad discretion to stay proceedings as an incident to its power to 23 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North 24 American Co., 299 U.S. 248, 254 (1936)). A stay is discretionary and the “party requesting a stay 25 bears the burden of showing that the circumstances justify an exercise of that discretion.” Nken 26 v. Holder, 556 U.S. 418, 433-34 (2009). “Generally, stays should not be indefinite in nature.” 27 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066–67 (9th Cir. 2007). 28 If a stay is especially long or its term is indefinite, a greater showing is required to justify it. 1 | Yong v. LN.S., 208 F.3d 1116, 1119 (9th Cir. 2000). The Court should “balance the length of 2 | any stay against the strength of the justification given for it.” Id. 3 Here, Plaintiff requests a stay of the proceedings in this case for an indefinite amount of 4 | time. However, Plaintiff has failed to show that there is sufficient justification to support an 5 | indefinite stay of this action, much less a basis to stay his case because he has litigation in another 6 | matter. Initially, the Court does not lightly stay litigation due to the possibility of prejudice to the 7 | defendants. Further, while the Court understands Plaintiffs pro se status and the resulting 8 | difficulties that Plaintiff may have in litigating this action at the same time as another civil action, 9 | Plaintiff chose to file this action and, hence, he is required to diligently prosecute this action and 10 | his other actions. This court has a tremendous caseload and cannot stay a case under this request 11 | as substantial prejudice may occur to the defendants who have yet had an opportunity to be heard 12 | on the request. Finally, a stay of the entire action is not Plaintiff's only remedy. 13 Consequently, Plaintiff's motion to stay this action is denied. 14 IV. 15 ORDER 16 Based on the foregoing, it is HEREBY ORDERED that: 17 1. Plaintiff's motion for service of summons and complaint, (ECF No. 13), is DENIED; 18 2. Plaintiff's motion for stay of action, (ECF No. 13), is DENIED. 19 20 IT IS SO ORDERED. OF. nf ee 22 | Dated: _September 23, 2019 _ OO 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28