(PC) Donaldson v. Garland ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD JULIUS DONALDSON, No. 2:21cv1178 KJN 12 Plaintiff, 13 v. ORDER 14 MERRICK GARLAND, et al., 15 Defendants. 16 17 Plaintiff is a federal prisoner. On June 29, 2021, plaintiff was notified that he was 18 required to file a request to proceed in forma pauperis on the correct form. Since that notice 19 issued, this action was transferred to the Eastern District. Plaintiff now moves for a stay of this 20 action because he is out to court, and not presently in the custody of the Bureau of Prisons. 21 “District courts have the discretion to stay proceedings pending before them.” Patton v. 22 DePuy Orthopaedics, Inc., 2019 WL 851933, at *3 (C.D. Cal. Feb. 21, 2019) (citing Landis v. 23 N.A. Co., 299 U.S. 248, 254-55 (1936), and Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th 24 Cir. 2005)); see also Confederated Tribes & Bands of Yakama Nation v. Airgas USA, LLC, 435 25 F. Supp. 3d 1103, 1127 (D. Or. 2019) (“This court has the inherent power to control its docket to 26 ‘promote economy of time and effort for itself, for counsel, and for litigants.’”) (citation omitted). 27 In deciding whether to grant a party’s motion to stay, courts in this circuit typically consider the 28 following three factors: “(1) [the] potential prejudice to the non-moving party; (2) [the] hardship 1 and inequity to the moving party if the action is not stayed; and (3) the judicial resources that 2 would be saved by avoiding duplicative litigation[.]” DePuy, 2019 WL 851933, at *3 (internal 3 quotations and citation omitted). 4 At the time he filed his motion for stay, plaintiff anticipated he would return to Herlong no 5 later than August 21, 2021. However, review of the inmate locator maintained by the Bureau of 6 Prisons (“BOP”) confirms that plaintiff has not returned to the custody of the Bureau of Prisons.1 7 Accordingly, the court finds good cause to impose a stay of this action pending plaintiff’s return 8 to Herlong.2 This action is stayed for a period of three months. If, after three months, the BOP 9 inmate locator reflects that plaintiff returned to BOP custody but did not submit his request to 10 proceed in forma pauperis, the undersigned will recommend that this action be dismissed based 11 on plaintiff’s failure to prosecute. 12 The Clerk of the Court is directed to send plaintiff an application to proceed in forma 13 pauperis by a prisoner used in this district. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion for stay (ECF No. 9) is granted. 16 2. This action is stayed for three months. 17 3. Once plaintiff returns to Herlong, plaintiff shall file, within 21 days, a motion to lift the 18 stay, accompanied by a completed application to proceed in forma pauperis on this court’s form. 19 //// 20 1 The Court may take judicial notice of public records available on online inmate locators. See 21 United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator available to the public); Fed. R. Evid. 201 (court may take judicial notice 22 of facts that are capable of accurate determination by sources whose accuracy cannot reasonably 23 be questioned). 24 2 “[A] motion to stay is nondispositive where it ‘[does] not dispose of any claims or defenses and [does] not effectively deny . . . any ultimate relief sought.’” James v. Ariz. Dep’t of Corrs., 2019 25 WL 7494660, at *2 (D. Ariz. Aug. 14, 2019) (quoting S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013)). The motion to stay does not dispose of any claims or defenses and 26 does not effectively deny any ultimate relief. Thus, the undersigned may resolve the motion to 27 stay by order without full consent to the jurisdiction of a U.S. Magistrate Judge. 28 U.S.C. § 636(c). 28 ] 4. Plaintiff shall keep the court apprised of his current address at all times, even during 2 || the stay. Local Rule 182(f). 3 5. The Clerk of the Court is directed to send plaintiff an application to proceed in forma 4 || pauperis by a prisoner in the Eastern District of California. 5 || Dated: August 31, 2021 Foci) Aharon 7 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 8 9 |} /donal178.sty 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28