(PC) Kamilchu v. County of Sacramento

Opinion

1 2 3 4 5 6 7 10 11 EDUARD KAMILCHU, No. 2:21-cv-02245-DB 12 Plaintiff, 13 v. ORDER & FINDINGS & RECOMMENDATIONS 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action seeking relief pursuant to 42 U.S.C. § 1983. Before the court is plaintiff’s request for a stay 19 and abeyance. (ECF No. 24.) For the reasons stated below, the undersigned recommends that 20 plaintiff’s motion for a stay and abeyance (ECF No. 24) be denied, and this action be dismissed. 21 Plaintiff asserts that due to health issues he is unable to pursue any and all legal matters. 22 (ECF No. 24 at 1.) Plaintiff then states he does not have access to scribe services or electronic 23 typing implementations within CDCR and he is currently awaiting diagnostic “work-up to 24 thoroughly evaluate and diagnose [his] illnesses and disability.” (Id.) Plaintiff acknowledges that 25 he does not know when he will be able to continue pursuing his legal matters. (Id.) 26 The district court “has broad discretion to stay proceedings as an incident to its power to 27 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North 28 American Co., 299 U.S. 248, 254 (1936)). “Generally, stays should not be indefinite in nature.” 1 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066-67 (9th Cir. 2007). 2 If a stay is especially long or its term is indefinite, a greater showing is required to justify it. 3 Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000). The party seeking the stay bears the burden 4 of establishing the need to stay the action. Clinton, 520 U.S. at 708. 5 Here, plaintiff has not established the need to stay this action. In support of his motion 6 plaintiff provided grievances submitted and the affiliated response. (ECF No. 24 at 3-6.) The 7 plaintiff’s grievance indicates that he found the accommodation of an ADA worker and custody 8 staff’s assistant to be unacceptable. (Id. at 6.) Further, the response to plaintiff’s grievance 9 asserts that ADA workers and staff can assist with paperwork. (Id. at 3-4.) Accommodations 10 have been offered and plaintiff has not explained why these resources are not sufficient to pursue 11 this case. 12 Plaintiff has received extensions totaling 138 days and has still not filed his third amended 13 complaint. On June 24, 2023, the court dismissed plaintiff’s second amended complaint (ECF No. 14 17) with leave to amend because it did not state any cognizable claims. (ECF No. 18.) Plaintiff 15 was granted thirty days to file a third amended complaint. (Id.) By order filed June 26, 2023, 16 plaintiff’s complaint was dismissed, and thirty days leave to file an amended complaint was 17 granted. In lieu of filing his complaint plaintiff asked for an extension of time to May 15, 2024. 18 (ECF No. 19.) On July 28, 2023, plaintiff was granted an additional thirty days in which to file 19 an amended complaint. (ECF No. 20.) At that time plaintiff was cautioned that no further 20 extensions would be granted absent extraordinary circumstances. (Id.) Plaintiff yet again 21 requested an extension of time to May 15, 2024. (ECF No. 21.) In response the undersigned 22 granted plaintiff forty-five days to file a third amended complaint. (ECF No. 23.) Once again 23 plaintiff was cautioned that absent extraordinary circumstances no further extension of time 24 would be granted and failure to comply with the order would result in a recommendation this 25 action be dismissed. (ECF No. 23 at 6.) 26 //// 27 //// 28 //// 1 Forty-five days from that date have now expired, and plaintiff has not filed an amended 2 | complaint of shown that extraordinary circumstances exist that would allow for another extension 3 | of time. Accordingly, the undersigned will recommend that this action be dismissed for failure to 4 | prosecute and failure to comply with court orders. 5 IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign this action to 6 | a United States District Judge. 7 | Accordingly, IT IS HEREBY RECOMMENDED that: 8 1) Plaintiff's request for a stay and abeyance (ECF No. 24) be denied; 9 2) That this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 10 A1(b). 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, plaintiff may file written objections 14 | with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 15 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 16 | time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 17 | (9th Cir. 1991). 18 | Dated: April 5, 2024

20 UNITED STATES MAGISTRATE JUDGE 22 23 24 | pple DB/Prisoner Inbox/ Civil Rights/s/kami2245.fta.ext 25 26 27 28