(HC) George v. Sullivan ( 2010 )

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 HOLLISTER GEORGE, ) 1:08-CV-132 AWI MJS (HC) 6 ) Petitioner, ) ORDER DECLINING TO ISSUE STAY 7 ) PENDING APPEAL ) 8 v. ) ) 9 ) W.J. SULLIVAN, ) (Doc. No. 27) 10 ) Respondent. ) 11 ) 12 Petitioner challenged the denial of a parole date through this habeas corpus proceeding. On 13 June 16, 2010, the Court declined to adopt a Findings and Recommendation and instead granted 14 Petitioner’s request for a writ of habeas corpus. The Court reviewed the denial of a parole date, 15 determined that the decision was not supported by “some evidence,” and ordered the California 16 Board of Parole Hearings (“BPH”) to set a parole date within 30 days. See Court’s Docket Doc. No. 17 22. Respondent requested that the Court issue a stay pursuant to Federal Rule of Civil Procedure 18 62(c), and then filed a notice of appeal. See Court’s Docket Doc. Nos. 27, 28. 19 Respondent argues that a stay should be issued because: (1) it has a strong likelihood of 20 success on appeal because this impermissibly utilized California’s “some evidence” standard in 21 evaluating the petition; (2) a stay would not substantially injure Petitioner because he has an 22 indeterminate life sentence; (3) Respondent would be irreparably harmed because issuance of a 23 parole date jeopardizes public safety; and (4) the public has an interest in ensuring that decisions by 24 the BPH remain undisturbed. 25 Legal Standard 26 Through Federal Rule of Civil Procedure 62(c), a district court “retains jurisdiction during 27 the pendency of an appeal to act to preserve the status quo.” Natural Resources Defense Council, 28 1 |] Inc. v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). “Rule 62(c) does not restore 2 || jurisdiction to the district court to adjudicate anew the merits of the case,” and the “district court’s 3 || exercise of jurisdiction should not materially alter the status of the case on appeal.” Mayweathers v 4 || Newland, 258 F.3d 930, 935 (9th Cir. 2001); Southwest Marine, 242 F.3d at 1166. In relevant part, 5 || Rule 62(c) reads: 6 (c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion 7 may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security 8 of the rights of the adverse party... . 9 || Fed. R. Civ. P. 62(c). 10 “A party seeking a stay of a lower court’s order bears a difficult burden.” United States v. 11 || Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1994), District 12 || courts consider four factors in ruling on Rule 62(c) motions: “(1) whether the stay applicant has 13 made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be 14 |] irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other 15 || parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 48 16 U.S. 770, 776 (1987); United States v. 1020 Elect. Gambling Mach., 38 F.Supp.2d 1219, 1220 (E.L 17 || Wash. 1999); Overstreet ex rel. NLRB v. Thomas Davis Medical Ctrs., P.C., 978 F. Supp. 1313, 18 || 1314 (D. Ariz. 1997); Texaco Ref. & Mktg. v. Davis, 819 F.Supp. 1485, 1486 (D. Or. 1993); Mille 19 v. Carlson, 768 F.Supp. 1341, 1342 (C.D. Cal. 1991). “This standard for evaluating the desirability 20 || of a stay pending appeal is quite similar to that which the Court employ[s] in deciding to grant [a] 21 || preliminary injunction.” Miller, 768 F.Supp. at 1342 (citing Lopez v. Heckler, 713 F.2d 1432, 1435 22 || (9th Cir. 1983)). With respect to irreparable injury, speculative injury does not constitute irreparabl 23 || injury. See Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984). Rather, a plaintit 24 || must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief. □□ 25 || Caribbean Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). In evaluating the 26 || harm that will occur depending upon whether the stay is granted, a court may consider: “(1) the 27 || substantiality of the injury alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the 28 || proof provided.” Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d Court California 1 || 150, 153 (6th Cir. 1991). 2 Discussion 3 After reviewing the Hilton factors, the Court does not believe that a stay is appropriate. 4 || Respondent has not made a sufficient showing that it is likely to succeed on appeal, has not 5 || sufficiently shown irreparable injury, has not sufficiently shown that Petitioner will not be harmed, 6 || and has not sufficiently shown that the public interest clearly lies in favor of a stay, such that a stay 7 || should issue. Respondent has not adequately met its “difficult burden” of showing that a stay of thi 8 || Court’s order is necessary. See Hilton, 481 U.S. at 776; Private Sanitation, 44 F.3d at 1084. 9 10 Accordingly, IT IS HEREBY ORDERED that Respondent’s Rule 62(c) motion is DENIED. 11 12 || IT IS SO ORDERED. . Sth hles Dated: _ June 23, 2010 . □ 14 CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court California