1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE ANDRADE RICO, No. 2:17-cv-1402 KJM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JEFFREY BEARD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Plaintiff alleges use of the Guard One security check system violated his 19 Eighth Amendment rights. On June 20, 2019, defendants moved for a stay of these proceedings 20 pending the Ninth Circuit’s resolution of defendants’ interlocutory appeal. After considering the 21 parties’ briefs, this court finds it unnecessary to hear argument on defendants’ motion. For the 22 reasons set forth below, this court will recommend defendants’ motion be granted. 23 BACKGROUND 24 This case is proceeding on plaintiff’s second amended complaint filed on May 3, 2017. 25 (ECF No. 38.) He alleges use of the Guard One system in the Security Housing Unit at Pelican 26 Bay State Prison caused him severe sleep deprivation in violation of his Eighth Amendment 27 rights. The Guard One system was implemented pursuant to an order issued by Judge Mueller in 28 Coleman v. Brown, No. 2:90-cv-0520 KJM DB (E.D. Cal.). In 2018, Judge Mueller related the 1 present case, and several other cases regarding use of the Guard One system in California prisons, 2 to Coleman. 3 In February 2018, defendants moved to dismiss this action. Defendants argued, among 4 other things, that because plaintiff is no longer incarcerated in the Security Housing Unit his 5 claims for injunctive and declaratory relief are moot. Defendants further argued that they are 6 protected from liability for damages by qualified immunity. In March 2019, Judge Mueller 7 dismissed plaintiff’s claims for injunctive and declaratory relief as moot, dismissed the high level 8 supervisory defendants based on qualified immunity, and denied the motion to dismiss the 9 remaining defendants, identified as the “appeals review defendants” and the “floor officer 10 defendants.” 11 Defendants appealed Judge Mueller’s ruling. (ECF No. 103.) That appeal remains 12 pending before the Ninth Circuit. (See ECF Nos. 104, 107.) On June 20, 2019, defendants made 13 the present motion to stay these proceedings pending the Ninth Circuit’s resolution of their 14 appeal. (ECF No. 112.) Plaintiff opposes the stay. (ECF No. 114.) Defendants filed a reply. 15 (ECF No. 115.) 16 MOTION FOR STAY 17 Defendants argue the court should stay all proceedings in this case to avoid the potentially 18 unnecessary expense involved in discovery and other pretrial matters. In his opposition, plaintiff 19 argues he will be prejudiced if discovery is stayed. 20 I. Effect of Interlocutory Appeal 21 The court first considers defendants’ argument that a stay of these proceedings is 22 essentially automatic because the district court is deprived of jurisdiction over the subjects of the 23 interlocutory appeal. 24 A. Legal Standards 25 Although circuit courts generally lack jurisdiction to hear an interlocutory appeal from an 26 order denying summary judgment or a motion to dismiss, a narrow exception exists under the 27 collateral order doctrine for appeals of orders denying qualified immunity. Mitchell v. Forsyth, 28 472 U.S. 511, 530 (1985). This exception exists because qualified immunity is an immunity from 1 suit rather than a mere defense to liability, and that immunity “is effectively lost if a case is 2 erroneously permitted to go to trial.” Id. at 526. 3 Such an appeal “normally divests the district court of jurisdiction to proceed with trial.” 4 Padgett v. Wright, 587 F.3d 983, 985 (9th Cir. 2009); Chuman v. Wright, 960 F.2d 104, 105 (9th 5 Cir. 1992). Nonetheless, “[r]ecognizing the importance of avoiding uncertainty and waste, but 6 concerned that the appeals process might be abused to run up an adversary’s costs or to delay 7 trial, [the Ninth Circuit] ha[s] authorized the district court to go forward in appropriate cases by 8 certifying that an appeal is frivolous or waived.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 9 776, 790-91 (9th Cir. 2018) (citations omitted). “[A] frivolous qualified immunity claim is one 10 that is unfounded, ‘so baseless that it does not invoke appellate jurisdiction,’ and [ ] a forfeited 11 qualified immunity claim is one that is untimely or dilatory.” Marks v. Clarke, 102 F.3d 1012, 12 1017 n.8 (9th Cir. 1996) (quoting Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989)). For 13 example, an appeal would be frivolous where “the disposition is so plainly correct that nothing 14 can be said on the other side.” Dagdagan v. City of Vallejo, 682 F. Supp. 2d 1100, 1116 (E.D. 15 Cal. 2010) (citations omitted), aff’d sub nom., Dagdagan v. Wentz, 428 F. App’x 683 (9th Cir. 16 2011). 17 If the appeal is not frivolous or waived,1 the district court still “retains jurisdiction to 18 address aspects of the case that are not the subject of the appeal.” United States v. Pitner, 307 19 F.3d 1178, 1183 n.5 (9th Cir. 2002) (citing Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 20 (9th Cir. 1982); see also Alice L. v. Dusek, 492 F.3d 563, 564-65 (5th Cir. 2007) (district court is 21 divested of jurisdiction of only “those aspects of the case on appeal”). What constitutes the 22 “subject of the appeal” requires some consideration. Most courts have construed the “subject of 23 the appeal” to include the claims subject to the immunity defense. The district court thus loses 24 1 Plaintiff does not seek to certify defendants’ appeal as frivolous under Chuman. Even if he did, 25 this court does not find that “nothing can be said” for defendants’ position on appeal. See Dagdagan, 682 F. Supp. 2d at 1116. While this court disagrees with defendants as to the 26 characterization and substance of the arguments underlying their qualified immunity claim, such 27 disagreement does not meet the demanding standard for certifying an appeal as frivolous. Marks, 102 F.3d at 1017 n.8 (appeal is frivolous under Chuman if it is “so baseless that it does not invoke 28 appellate jurisdiction”). 1 jurisdiction of not only the immunity defense but also of those underlying claims. A stay of 2 pretrial proceedings on those claims would therefore be, essentially, automatic. 3 Judge England made that determination in Cabral v. County of Glenn, No. 2:08-cv-0029 4 MCE DAD, 2009 WL 1911692 (E.D. Cal. July 1, 2009). There, defendant Dahl sought dismissal 5 of plaintiff’s excessive force claim against him on the grounds of qualified immunity. The court 6 determined Dahl was not entitled to qualified immunity and Dahl appealed. Dahl and the other 7 defendants then sought a stay of the proceedings in the district court. Judge England noted that 8 an “interlocutory appeal on the issue of qualified immunity ... does not deprive this court of 9 jurisdiction to address other, unrelated, matters still pending before it.” 2009 WL 1911692, at *1 10 (quoting Beecham v. City of West Sacramento, 2008 WL 4821655, *1 (E.D. Cal. 2008)). He 11 then held that “[b]ecause the excessive force claim against Officer Dahl is clearly related to his 12 appeal, this action should be stayed as to that claim against Officer Dahl.” Discovery was 13 permitted on claims that would not be directly affected by the appeal. In conclusion, the court 14 ruled that “no witness may be deposed as to any issues that relate solely to either the excessive 15 force cause of action brought against Officer Dahl and/or Officer Dahl’s claim of qualified 16 immunity.” Id. at *2. 17 Other courts have similarly held that the interlocutory appeal on the issue of immunity 18 requires the district court to stay pretrial proceedings on claims subject to that immunity. See, 19 e.g., J.P. by and through Villanueva v. Cty. of Alameda, No. 17-cv-5679-YGR, 2018 WL 20 3845890, at *2 (N.D. Cal. Aug. 13, 2018) (pending resolution of appeal, defendants are entitled to 21 a stay of all pretrial proceedings on claims for which immunity defense applicable). 22 A stay of pretrial proceedings on the underlying claims is necessary to give effect to the 23 purposes of the qualified immunity doctrine. As noted by the Supreme Court, the purpose of 24 qualified immunity is “not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such 25 pretrial matters as discovery . . . , as [i]nquiries of this kind can be peculiarly disruptive of 26 effective government.’” Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (quoting Mitchell, 472 27 U.S. at 526) (some internal quotations marks omitted). Courts in this and other circuits have 28 recognized that pretrial proceedings on the merits of a claim should be delayed until the qualified 1 immunity issue is resolved. See Dahlia v. Stehr, 491 F. App’x 799, 801 (9th Cir. 2012) (“[A] 2 denial of summary judgment without prejudice is sufficiently final to support jurisdiction over an 3 interlocutory appeal . . . because the purpose of qualified immunity is ‘not merely to avoid 4 standing trial, but also to avoid the burdens of such pretrial matters as discovery.’” (quoting 5 Behrens, 516 U.S. at 308)); Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (recognizing the 6 importance of resolving qualified immunity issue early in the case because such immunity 7 permits government officials to avoid the burdens of pretrial matters such as discovery); Ganwich 8 v. Knapp, 319 F.3d 1115, 1119 (9th Cir. 2003) (same); Holloway v.City of Pasadena, No. 2:15- 9 cv-3867-CAS(JCx), 2016 WL 11522304, at *2 (C.D. Cal. Mar. 14, 2016) (same); Congdon v. 10 Lenke, No. CIV 08-1065RJB, 2010 WL 489677, at *8 (E.D. Cal. Feb. 5, 2010) (same); 11 Wolfenbarger v. Black, No. CIV S-03-2417 MCE EFB P, 2008 WL 590477, at *2 (E.D. Cal. Feb. 12 29, 2008) (district court should resolve immunity issue before allowing discovery), rep. and reco. 13 adopted, 2008 WL 838721 (E.D. Cal. Mar. 28, 2008); see also District of Columbia v. Trump, 14 930 F.3d 209 (4th Cir. 2019) (an entitlement to immunity is an entitlement “‘not to stand trial or 15 face the other burdens of litigation’” (quoting Mitchell, 472 U.S. at 526)); Oliver v. Roquet, 858 16 F.3d 180, 188 (3rd Cir. 2017) (“‘[A] defendant pleading qualified immunity is entitled to 17 dismissal before the commencement of discovery.’” (quoting Mitchell, 472 U.S. at 526)); 18 Marksmeier v. Davis, 622 F.3d 896, 903 (8th Cir. 2010) (same); Barron v. Livingston, 42 F. 19 App’x 793, 794 (6th Cir. 2002) (“Qualified immunity provides government officials the right to 20 avoid the pre-trial burden of discovery.” (citing Behrens, 516 U.S. at 314)). 21 In fact, courts have also held that an order permitting discovery on the merits prior to a 22 ruling on an immunity defense is itself grounds for an interlocutory appeal. See Oliver, 858 F.3d 23 at 188 (subjecting a government official to the burdens of pretrial matters such as discovery is an 24 “implicit denial” of qualified immunity); Nee v. Byrne, 35 F. App’x 296 (8th Cir. 2002). 25 B. Does the Interlocutory Appeal in this Case Require a Stay of all Proceedings? 26 In the present case, plaintiff’s remaining claims are all subject to the qualified immunity 27 defense. Therefore, just as in Cabral, they should be considered “subjects” of the appeal. As 28 //// 1 such, further proceedings on those claims should be stayed. This stay would permit defendants 2 the full benefits of immunity, should the Ninth Circuit find they are entitled to it. 3 Plaintiff argues that some courts did not “automatically” stay the entire case when a party 4 filed an interlocutory appeal. However, plaintiff ignores the fact that the weight of authority 5 requires this court to conclude that proceedings on the claims that would be affected by the appeal 6 should be stayed. In almost every case found, the court denying a stay has done so only with 7 respect to claims that would not be affected by the immunity issues on appeal. 8 In a few cases, courts have permitted discovery to proceed on the claims underlying the 9 assertions of immunity. However, in each one, the court found that the issues on appeal were 10 distinct from the merits of the claims. In the interlocutory appeal at issue in Castaneda, the 11 defendants challenged the district court’s order denying them immunity from suit under the 12 Federal Tort Claims Act. Castaneda v. Molinar, No. CV 07-7241 DDP(JCx), 2008 WL 9449576 13 (C.D. Cal. May 20, 2008). If defendants were successful on appeal, that immunity would have 14 barred plaintiff Castaneda’s entire suit against them. However, the district court found a stay 15 unnecessary because the factual issues in the underlying claims were distinct from the statutory 16 construction issue in the appeal. Id. at *5-6. Therefore, discovery on the plaintiff’s claims would 17 not affect the record before the appellate court. In addition to this distinction, the court stressed 18 that it found the defendants’ interlocutory appeal meritless. Id. at *4. 19 The court in Castaneda relied, in part, on Schering Corp. v. First DataBank, Inc., No. C 20 07-1142 WHA, 2007 WL 1747115 (N.D. Cal. June 18, 2007). There, the district court noted that 21 the issue of the appeal was “completely separate from the merits” of the action. The action in 22 Schering involved product disparagement - trade libel, negligent publication and tortious 23 interference with economic advantage. The defendant moved to dismiss the case based on 24 California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. The district 25 court denied that motion, finding that the anti-SLAPP statute did not apply. Holding that the 26 issues regarding the applicability of the statute had no bearing on the plaintiff’s tort claims, and 27 vice versa, the court declined to stay discovery on those claims. 2007 WL 1747115, at *4. 28 //// 1 Plaintiff points to a third case in which the district court also permitted discovery to 2 proceed. However, again, the court carved out the immunity issue, noting that it was “separate 3 from the merits of the underlying litigation.” Donahoe v. Arpaio, No. CV 10-2756 PHX NVW, 4 2012 WL 2063455, at *2 (D. Ariz. June 7, 2012). The court also relied on the complications 5 involved in attempting to separate, for discovery purposes, the claim which was potentially 6 subject to immunity from the other claims in the case. Id. at *3. 7 In the present case, the merits issues and immunity issues are intertwined. Here, 8 defendants have appealed the denial of qualified immunity. Defendants are protected by qualified 9 immunity if: (1) the facts, if proved, do not establish that they violated a constitutional right, or 10 (2) the plaintiff does sufficiently allege a violation of a constitutional right, but that right was not 11 clearly established by law. See Saucier v. Katz, 533 U.S. 194, 201 (2001); cf. Marks, 102 F.3d at 12 1018 (recognizing that “it is often impossible to separate the court’s reasoning or decisions 13 regarding qualified immunity from those regarding liability;” “[t]he issues are generally analyzed 14 together and are sometimes simply not susceptible to independent review”). 15 Here, plaintiff alleges that defendants intentionally deprived him of sleep in violation of 16 the Eighth Amendment. In the interlocutory appeal, in examining the first factor in the qualified 17 immunity analysis, the Ninth Circuit could determine that plaintiff fails to state facts which, if 18 proved, would establish that a defendant or defendants violated his Eighth Amendment rights. 19 That determination would both establish that a defendant is entitled to qualified immunity and 20 further establish that plaintiff has failed to state a claim for relief under the Eighth Amendment. 21 Accordingly, this court does not find the opinions in Castaneda, Schering, and Donahoe 22 persuasive authority for a stay in the present case. The court should hold that a stay is necessary 23 because plaintiff’s claims are a subject of the pending interlocutory appeal. 24 Even if the decisions in Castaneda, Schering, and Donahoe demonstrate that the district 25 court has the authority to proceed with pretrial matters on the merits of claims subject to 26 immunity, the court should not exercise that discretion in this case. As set out below, under 27 applicable legal standards, a stay is appropriate. 28 //// 1 II. Application of Stay Standards 2 A. Appropriate Legal Standard 3 “District courts have inherent authority to stay proceedings before them.” Rohan ex rel. 4 Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003), abrogated on other grounds by Ryan v. 5 Gonzales, 568 U.S. 57 (2013). The power to stay is “incidental to the power inherent in every 6 court to control the disposition of the causes on its docket with economy of time and effort for 7 itself, for counsel and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). 8 Further, every court has the power “to manage the cases on its docket and to ensure a fair and 9 efficient adjudication of the matter at hand.” Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 10 (C.D. Cal. 1997) (citing Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1077 (3d Cir. 11 1983)). The decision whether to stay a civil action is left to the sound discretion of the district 12 court. Rohan, 334 F.3d at 817. 13 The parties put forth two different sets of standards for determining the propriety of a stay. 14 Plaintiff contends this court is required to apply the stay standards set out by the Supreme Court 15 in Hilton v. Braunskill, 481 U.S. 770 (1987) and Nken v. Holder, 556 U.S. 418 (2009). Those 16 standards are: 17 (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be 18 irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and 19 (4) where the public interest lies.’ ” Id. at 434 (quoting). 20 Nken, 556 U.S. at 433–34 (quoting Hilton, 481 U.S. at 776). 21 Defendants, on the other hand, argue that the standards described by the Supreme Court in 22 Landis are applicable here. In Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005), the 23 Ninth Circuit noted that a district court “has discretionary power to stay proceedings in its own 24 court under Landis.” The court then described those standards: 25 “Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal 26 to grant a stay must be weighed. Among those competing interests are the possible damage which may result from the granting of a stay, 27 the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of 28 1 the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” 2 3 Lockyer, 398 F.3d at 1110 (quoting CMAX Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). 4 Determining which standards apply is important because they have significant 5 distinctions. Under Hilton/Nken, defendants must show both a strong likelihood of success on 6 the merits of the appeal and irreparable injury if a stay is not issued. The Landis standards do not 7 require these two showings. 8 Plaintiff has little support for his argument that the Hilton/Nken standards should apply. 9 The few courts that have applied those standards when considering a stay pending an 10 interlocutory appeal did so without any discussion of the Landis standards. See In re World 11 Trade Ctr. Disaster Site Lit., 503 F.3d 167, 170 (2nd Cir. 2007); Castaneda, 2008 WL 9449576, at 12 *2; Davila v. County of San Joaquin, No. CIV S-06-2691 LKK/EFB, 2008 WL 4426669 (E.D. 13 Cal. Sept. 26, 2008). 14 A judge in the Northern District of California recently considered the issue raised here – 15 whether the Hilton/Nken or Landis stay standards should apply to a request for a stay pending an 16 interlocutory appeal. Kuang v. U.S. Dep’t of Defense, No. 18-cv-3698-JST, 2019 WL 1597495 17 (N.D. Cal. Apr. 15, 2019). In Kuang, the district court considered a request for a stay pending an 18 appeal of its grant of a preliminary injunction. The Kuang court reviewed the authority applying 19 the Hilton/Nken test and applying the Landis test in this situation. Id. at *2-3 The court found 20 that courts applying the Hilton/Nken test had not discussed the Landis test “or offered a reasoned 21 analysis as to why the Nken test applied.” On the other hand, the Kuang court found that district 22 courts that have directly confronted the question have “overwhelmingly concluded that the Landis 23 test or something similar governs.” Id. at *3 (collecting cases). 24 The Kuang court then went on to examine the reasons why it makes sense to apply the 25 Landis test to a stay of ongoing proceedings and the Hilton/Nken test to a stay of a final 26 judgment. The purpose of a stay under Landis is to permit the court to “‘control the disposition of 27 the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.’” 28 Id. at *3 (quoting 23andMe, Inc. v. Ancestry.com DNA, LLC, No. 18-CV-02791-EMC, 2018 WL 1 5793473, at *3 (N.D. Cal. Nov. 2, 2018)). The Kuang court noted that “[t]hese same concerns 2 exist where, as here, a court ‘considers whether it should proceed forward on discovery ... and 3 pre-trial litigation in [an] action in light of the potential that the appellate court will determine that 4 a large portion of the action should be dismissed, rendering much of the work to be completed 5 meaningless.’” Id. (quoting Finder v. Leprino Foods Co., No. 1:13-cv-2059 AWI BAM, 2017 6 WL 1355104, at *2 (E.D. Cal. Jan. 20, 2017)2). 7 The purpose of a stay under Hilton/Nken, by contrast, is not whether going forward with 8 the litigation “will be inefficient for the parties and the court” but rather whether “equity demands 9 that the court ‘preserve the pre-judicial-relief status quo pending the appellate court’s 10 determination of the correctness of that relief.’” 2019 WL 1597495, at *3 (citing Finder, 2017 11 WL 1344104, at *2.) In Hilton, the government sought a stay of a district court’s judgment 12 granting habeas relief. In Nken, the applicant sought a stay of a district court’s order requiring his 13 deportation. 14 This court finds the reasoning in Kuang and Finder compelling. The question here is one 15 of efficiency. While the court should certainly consider issues of fairness and prejudice as well, 16 the point of a stay is avoiding potentially unnecessary work by all those involved. And, use of the 17 Landis standard is, in this case, even more appropriate than its use in Kuang and Finder. In those 18 cases, interlocutory appeals on specific issues were pending. Those cases did not involve 19 interlocutory appeals on immunity issues. Therefore, the courts in Kuang and Finder could have 20 reasonably decided to proceed with discovery on other issues that were not the subject of the 21 appeal. In the present case, this court has been divested of jurisdiction to consider the issues 22 regarding qualified immunity and, should defendants prevail on appeal, plaintiff’s entire action 23 would be dismissed. 24 //// 25
26 2 In Finder, the district court certified a question for appeal regarding the construction of terms in the California Labor Code. See 2017 WL 1355104, at *1. The district court noted that resolution 27 of that legal question would “dramatically simplify the questions of law and potentially the questions of proof now pending before the court.” Id. at *4. Therefore, applying the Landis 28 standards, the court found a stay appropriate. Id. at *3-4. 1 For these reasons, this court will consider defendants’ request for a stay under the Landis 2 factors described by the Ninth Circuit in Lockyer: (1) “the possible damage which may result 3 from the granting of a stay;” (2) “the hardship or inequity which a party may suffer [if the case is 4 allowed] to go forward;” and (3) “the orderly course of justice measured in terms of the 5 simplifying or complicating of issues, proof, and questions of law which could be expected to 6 result from a stay.” Lockyer, 398 F.3d at 1110. Thus, this court need not, as plaintiff strenuously 7 argues, consider the likelihood that defendants will succeed on the merits of their appeal or 8 whether they will be irreparably harmed if these proceedings are not stayed. 9 B. Analysis 10 1. Potential Damage Resulting from a Stay 11 Plaintiff argues he will be prejudiced by a stay of “several years” because memories will 12 fade. Plaintiff does not identify whose memory he is concerned about, just what issues in his case 13 will hinge on memories, or why he feels it may be several years before the Ninth Circuit renders a 14 decision. This court does accept, however, that it is not possible to know how long it may be 15 before the interlocutory appeal is concluded. 16 Plaintiff cites a number of cases warning of the harms significant delays in litigation may 17 create. Few are relevant to the present case. In several cases, courts denied stays because the 18 plaintiffs sought redress other than damages that would be prejudiced by a stay. See Yong v. 19 I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000) (indefinite stay of habeas proceeding inappropriate 20 because “habeas proceedings implicate special considerations that place unique limits on a district 21 court's authority to stay a case in the interests of judicial economy”); I.K. ex rel. E.K. v. Sylvan 22 Union School Dist., 681 F. Supp. 2d 1179 (E.D. Cal. 2010) (stay of federal proceedings for 23 resolution of state tort proceedings inappropriate in part because plaintiff sought funds to 24 remediate the educational deficits he suffered and delay would impair his academic 25 advancement). These cases are inapplicable to the present case because, in plaintiff’s remaining 26 claims, he seeks only damages. 27 In other cases, plaintiff simply cites general language about potential harm from indefinite 28 stays. Those cases do not directly address the issue here. See Blue Cross and Blue Shield of Ala. 1 v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718 (9th Cir. 2007) (court expresses concern 2 about potential length of stay – “easily” as long as five or six years – but, because the district 3 court failed to provide a reasoned decision for the stay, vacates and remands for a reasoned 4 decision); United States v. Aerojet Rocketdyne Holdings, Inc., 381 F. Supp. 3d 1240, 1250 (E.D. 5 Cal. 2019) (arbitrable claims should be stayed under Federal Arbitration Act, but court would 6 proceed on separable non-arbitrable claims to avoid significant delay); Greer v. Dick’s Sporting 7 Goods, Inc., No. 2:15-cv-1063 KJM CKD, 2018 WL 372753 (E.D. Cal. Jan. 10, 2018) district 8 court applies Landis standard to determine that parties should be able to proceed on claims 9 unrelated to the subject of the appeal). 10 In the present case, plaintiff fails to show the delay involved in the appeal will likely be 11 lengthy. In addition, he fails to show just what prejudice he may suffer from a delay. Parties 12 successfully arguing that delay will be prejudicial due to fading memories have provided greater 13 specificity regarding the potential for prejudice. See Greer, 2018 WL 372753, at *3 (plaintiff 14 class members unlikely to be able to remember with specificity the length of time they were 15 subjected to security checks, an important issue in the case). This court finds that plaintiff has 16 failed to demonstrate he will face significant hardship if this case is stayed pending the resolution 17 of the interlocutory appeal. 18 2. Hardship to Moving Party 19 Defendants argue that discovery in this case has been, and will be, burdensome and time 20 consuming. As described above, these issues are just the sort of hardships for which the Landis 21 analysis applies. The court finds this factor weighs in favor of a stay. 22 3. Orderly Course of Justice 23 This third and final factor also weighs in favor of granting a stay. If the Ninth Circuit 24 rules that defendants are protected by qualified immunity, this case will be dismissed. In that 25 event, if this case is not stayed, both parties will have spent time and resources unnecessarily. In 26 addition, the court’s limited resources may have been spent on issues that need not have been 27 resolved. This court finds the equities weigh in favor of granting a stay. 28 //// 1 C. Conclusion 2 This court finds a stay of these proceedings appropriate on two bases. First, because 3 | defendants’ qualified immunity defense applies to all plaintiff's remaining claims, the court lacks 4 | jurisdiction to conduct proceedings on those claims during the interlocutory appeal of the 5 | immunity issues. Second, even if this court retains jurisdiction over plaintiff's claims, a stay is 6 | appropriate under Landis. 7 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion to stay these 8 | proceedings until the Ninth Circuit renders a decision on defendants’ interlocutory appeal (ECF 9 | No. 112) be granted. 10 These findings and recommendations will be submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 12 | after being served with these findings and recommendations, either party may file written 13 || objections with the court. The document should be captioned “Objections to Magistrate Judge's 14 | Findings and Recommendations.” The parties are advised that failure to file objections within the 15 || specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 16 | Yist, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: August 29, 2019 18 19 20 | DLB:9 UNITED STATES MAGISTRATE JUDGE DLB 1 /prisoner-civil rights/rico1402.stay fr2 - 21 22 23 24 25 26 27 28 13