(PC) Bowell v. California Department of Corrections ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BOWELL, No. 2:17-cv-0981 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16 17 18 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 19 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 20 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On July 30, 2020, the magistrate judge filed findings and recommendations, which were 22 served on all parties and which contained notice to all parties that any objections to the findings 23 and recommendations were to be filed within twenty-one days. Plaintiff filed objections to the 24 findings and recommendations. Defendants did not file a reply. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Plaintiff does not contest the Magistrate 27 Judge’s conclusion that the defendants violated no clearly established law. The court agrees with 28 and adopts that conclusion. When, as is true here, officers “act[] in reliance on a duly-enacted 1 statute or ordinance,” they are “ordinarily entitled to qualified immunity.” Tshida v. Motl, 924 2 F.3d 1297, 1305 (9th Cir. 2019) (quoting Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th 3 Cir. 1994)). “[L]iability may attach only where (1) the statute ‘authorizes official conduct which 4 is patently violative of fundamental constitutional principles,’ or (2) the official ‘unlawfully 5 enforces an ordinance in a particularly egregious manner, or in a manner which a reasonable 6 officer would recognize exceeds the bounds of the ordinance.’” Id. (quoting Grossman, 33 F.3d 7 at 1209–10). No allegations in the complaint could show that the tuberculosis testing 8 requirements in question or the defendants’ actions satisfy either of these requirements. 9 Plaintiff instead requests a stay pending his release from custody so that he can “have a 10 law firm properly respond and draft [arguments on the] merits of [his] claim.” Objections at 1, 11 ECF No. 81. Four factors are generally relevant when evaluating a request for a stay: (1) whether 12 the party requesting a stay has made a “strong showing” of likely success on the merits, 13 (2) whether a stay will prevent irreparable injury; (3) whether a stay would “substantially injure 14 the other parties,” and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 428, 434 15 (2009). Plaintiff has not carried his burden to show that these factors favor a stay. He has not 16 made a strong showing of likely success on the merits, it is unclear whether continued 17 tuberculosis tests will cause him harm, and a stay would unnecessarily delay the resolution of this 18 matter. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The findings and recommendations filed July 30, 2020 are adopted in full; 21 2. Defendants’ motion to dismiss (ECF No. 56) is granted; and 22 3. This action is dismissed without prejudice. 23 DATED: November 5, 2020. 24 25 26 27 28