(PC) Bruce v. Chaiken et al, No. 2:2015cv00960 - Document 24 (E.D. Cal. 2015)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/21/2015 DIRECTING the Clerk to appoint a district judge to this action; and the Clerk shall serve a copy of these findings and recommendations on Deputy Attorney G eneral Gabriel Ulrich. IT IS RECOMMENDED that plaintiff's 14 motion requesting that CDCR calculate his filing fees sequentially be stayed pending the resolution of this issue by the US Supreme Court. Assigned and referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT BRUCE, 12 13 14 15 No. 2:15-cv-0960 KJN P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS SHAMA CHAIKEN, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On July 27, 2015, plaintiff filed a motion requesting that the court order the 19 California Department of Corrections and Rehabilitation (“CDCR”) to collect his filing fees 20 sequentially. (ECF No. 14.) Plaintiff alleges that this method for calculating filing fees, 21 compared to the proposed alternative method, imposes a hardship on his ability to correspond 22 with others and to purchase items at the canteen, including personal hygiene items. (Id. at 3-4.) 23 On September 1, 2015, the undersigned directed the CDCR Director to file a response to this 24 motion. (ECF No. 16.) 25 On October 1, 2015, CDCR Director filed a response to plaintiff’s pending motion. (ECF 26 No. 22.) CDCR Director correctly states that there is a significant split in the circuits of the 27 United States Courts of Appeal on the issue of the calculation of multiple filing fee payments 28 from prisoners. CDCR Director states that the United States Supreme Court has granted certiorari 1 1 to address this subject. See Pinson v. Samuels, 761 F.3d 1, 7 (D.C. Cir. 2014) (“The courts of 2 appeals are divided concerning the manner in which the PLRA calls for collection of installment 3 payments from prisoners who simultaneously owe filing fees in multiple cases”), certiorari 4 granted by Bruce v. Samuels, 135 S. Ct. 2833 (June 15, 2015). The CDCR Director requests that 5 this court stay disposition of plaintiff’s pending motion pending adjudication of the issue by the 6 United States Supreme Court. 7 For the following reasons, the undersigned recommends that plaintiff’s motion regarding 8 the calculation of his filing fees be stayed pending adjudication of the issue by the United States 9 Supreme Court. 10 “[T]he power to stay proceedings is incidental to the power inherent in every court to 11 control disposition of the cases on its docket with economy of time and effort for itself, for 12 counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “The exertion of 13 this power calls for the exercise of sound discretion.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 14 (9th Cir. 1962). 15 The court considers a number of factors in deciding whether to grant a stay. Id. (citing 16 Landis, 299 U.S. at 254–55). First, a court may consider the “possible damage which may result 17 from granting a stay.” Id. The second factor to consider is the hardship or inequity which a party 18 may suffer in being required to go forward. CMAX, 300 F.2d at 268. The third factor the court 19 may consider is “the orderly course of justice measured in terms of the simplifying or 20 complicating of issues, proof, and questions of law which could be expected to result from a 21 stay.” CMAX, 300 F.2d at 268. 22 With respect to the first factor, plaintiff will continue to suffer the alleged injuries if this 23 action is stayed. With respect to the second factor, the undersigned finds that neither plaintiff nor 24 the CDCR Director would suffer any significant hardship if they were required to go forward with 25 respect to disposition of the issue raised by plaintiff in the pending motion. The third factor, 26 however, clearly weighs in favor of staying this case. Because the United States Supreme Court 27 is considering the same issue raised by plaintiff in the pending motion, the orderly course of 28 justice warrants a stay. 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court is directed to appoint a district judge to this action; 3 2. The Clerk of the Court is directed to serve a copy of these findings and 4 recommendations on Deputy Attorney General Gabriel Ullrich, specially appearing on behalf of 5 the CDCR Director; and 6 IT IS HEREBY RECOMMENDED that plaintiff’s motion requesting that CDCR 7 calculate his filing fees sequentially (ECF No. 14) be stayed pending the resolution of this issue 8 by the United States Supreme Court. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: October 21, 2015 18 19 20 Bru960.sta 21 22 23 24 25 26 27 28 3

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