(PC) Witkin v. Cook

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL WITKIN, No. 2:20-cv-2355 DJC DB P 12 Plaintiff, 13 v. ORDER B. COOK, et al., 15 Defendants.

17 Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants retaliated against him in violation of his First Amendment rights. Presently before the court is defendants’ ex parte application to stay this case pending resolution of plaintiff’s in forma pauperis (“IFP”) status. (ECF No. 55.)

21 On May 1, 2023, defendants filed a motion to revoke plaintiff’s IFP status because plaintiff had been released from custody. (ECF No. 49.) By order dated August 29, 2023, the undersigned denied the motion without prejudice and directed plaintiff to submit an updated motion to proceed IFP within thirty days. (ECF No. 53.) Thereafter, defendants filed an answer and the instant application for stay.

26 The United States Supreme Court has clearly indicated that “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How | this can best be done calls for the exercise of judgment, which must weigh competing interests || and maintain an even balance.” Landis v. North American Co., 299 U.S. 248, 254-55 (1936).

3 | “Generally, stays should not be indefinite in nature.” Dependable Highway Exp.. Inc. v. | Navigators Ins. Co., 498 F.3d 1059, 1066-67 (9th Cir. 2007). When a party seeks an indefinite or | especially long stay, a greater showing is required to justify it. Young v. LN.S., 208 F.3d 1116, | 1119 (9th Cir. 2000). Additionally, “the proponent of the stay bears the burden of establishing its | need.” Clinton v. Jones, 520 U.S. 681, 706 (1997).

8 In support of their motion defendants argue that the court’s August 29, 2023, order | directed plaintiff to submit an updated application to proceed IFP or pay the filing fee within | thirty days. (ECF No. 55 at 1.) The order further warned plaintiff that failure to comply may | result in a recommendation that this action be dismissed. Thus, they argue “[p]laintiff’'s response || to that order, or lack thereof, may obviate the need for further litigation.” (Id.) Defendants | further argue that a stay is particularly appropriate because the court has not yet issued a | scheduling order. (d. at 4.)

15 The undersigned will deny without prejudice defendants’ request for a stay because | defendants have not shown that imposition of an indefinite stay is warranted at this time.

17 || However, the court will not issue a discovery and scheduling order until plaintiff's IFP status is || resolved.

19 Accordingly, IT IS HEREBY ORDERED that defendants’ application for stay pending | resolution of plaintiff's IFP status (ECF No. 55) is denied without prejudice.

21 | Dated: September 5, 2023 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE DB:12 | DB/DB Prisoner Inbox/Civil Rights/R/witk2355.stay