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4 UNITED STATES DISTRICT COURT

5 EASTERN DISTRICT OF CALIFORNIA

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7 JERRY LEE KING, Case No. 1:17-cv-00676-AWI-EPG (PC)

8 Plaintiff, ORDER GRANTING DEFENDANTS’

MOTION TO STAY

9 v.

ORDER DENYING PLAINTIFF’S

10 R. VILLEGAS and P. CRUZ, MOTION FOR AN ORDER TO

PRODUCE DOCUMENTS FOR

11 Defendants. INSPECTION/MOTION TO COMPEL

AND MOTION TO AMEND

12 WITHOUT PREJUDICE

13 (ECF NOS. 59, 82, & 86)

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15 16 Jerry King (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. 18 On July 12, 2019, Defendants filed a motion to stay this case “until Plaintiff’s criminal 19 charges in Kern County Superior Court case number DF012989A, arising from the August 17, 20 2016 incident, are resolved.” (ECF No. 82, p. 1). For the reasons that follow, the Court will 21 grant the motion. 22 As the Court is staying the case, the Court will deny Plaintiff’s motion for an order to 23 produce documents for inspection/motion to compel (ECF No. 59), without prejudice to 24 Plaintiff refiling the motion once the stay is lifted. 25 As to Plaintiff’s pending motion to amend (ECF No. 86),1 it will be denied, without 26 prejudice to Plaintiff refiling the motion. 27 28 1 Plaintiff titled the motion “supplemental pleading motion.” (ECF No. 86, p. 1). However, a supplemental pleading is one that sets “out any transaction, occurrence, or event that happened after the date of the 1 I. MOTION TO STAY 2 A. Defendants’ Position 3 Defendants “move for an order staying this action until Plaintiff’s criminal charges in 4 Kern County Superior Court case number DF012989A, arising from the August 17, 2016 5 incident, are resolved.” (ECF No. 82, p. 1). 6 “[] Plaintiff alleges that Defendants Villegas and Cruz attacked him during the August 7 17, 2016 incident without any provocation, struggle, or resistance on his part (ECF No. 1), but 8 Plaintiff is currently facing criminal charges for battering Defendant Villegas during the 9 incident in Kern County Superior Court case number DF012989A.” (ECF No. 82-1, p. 2). As 10 this case may end up being barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), and as a 11 determination in this proceeding could invalidate the ongoing criminal proceedings, Defendants 12 ask that this case be stayed until the criminal case is resolved. 13 B. Plaintiff’s Position 14 Plaintiff opposes the motion. Plaintiff argues that “[t]his motion is a clear effort at 15 delatory [sic] litigation tactics.” (ECF No. 83, p. 1). Plaintiff alleges that this action was filed 16 before the criminal charges, and that the criminal charges were not filed until the Attorney 17 General’s Office contacted the Kern County District Attorney. Plaintiff further alleges that 18 “[t]his stay motion and Heck Bar mention is a malicious vindictive retaliation for this Civil 19 Rights Action and for not taking the $1500 [] offered at settlement.” (Id. at 2). 20 C. Legal Standards 21 “The Constitution does not ordinarily require a stay of civil proceedings pending the 22 outcome of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 23 (9th Cir. 1995). “In the absence of substantial prejudice to the rights of the parties involved, 24 [simultaneous] parallel [civil and criminal] proceedings are unobjectionable under our 25 26

27 pleading to be supplemented.” Fed. R. Civ. P. 15(d). Here, the events appear to have happened immediately after 28 the events alleged in the complaint, and before the date of the pleading to be supplemented. Accordingly, the Court construes the motion as a motion for leave to amend. 1 jurisprudence.” Id. “Nevertheless, a court may decide in its discretion to stay civil proceedings 2 . . . ‘when the interests of justice seem[] to require such action.’” Id. (citations omitted). 3 D. Analysis 4 Plaintiff submitted no evidence supporting his assertion that the criminal charges 5 against him were brought at the request of the Office of the Attorney General, or his assertion 6 that this motion “is a malicious vindictive retaliation” for Plaintiff filing this action and not 7 agreeing to settle. 8 Additionally, Plaintiff does not dispute that he has been charged for assaulting 9 defendant Villegas during the incident, a charge that appears to be inconsistent with the 10 allegations in the complaint. As Plaintiff filed claims related to rulings that will likely be made 11 in what is now a pending criminal proceeding, the Court will stay the case. Wallace v. Kato, 12 549 U.S. 384, 393-94 (2007) (“If a plaintiff files a false-arrest claim before he has been 13 convicted (or files any other claim related to rulings that will likely be made in a pending or 14 anticipated criminal trial), it is within the power of the district court, and in accord with 15 common practice, to stay the civil action until the criminal case or the likelihood of a criminal 16 case is ended.”). See also Peyton v. Burdick, 358 F. App'x 961, 962 (9th Cir. 2009) (“Because 17 Peyton’s claims implicate rulings that are likely to be made in the pending state court criminal 18 proceeding, the district court should have stayed the section 1983 action until the criminal case 19 ... is ended.”) (alteration in original) (citations and internal quotation marks omitted). 20 II. MOTION FOR AN ORDER TO PRODUCE DOCUMENTS FOR 21 INSPECTION/MOTION TO COMPEL 22 As the Court is staying the case, the Court will deny Plaintiff’s motion to compel (ECF 23 No. 59), without prejudice to Plaintiff refiling the motion within twenty-one days of the date of 24 the order lifting the stay. The Court notes that it is not preventing Defendants from renewing 25 their untimeliness argument if a new motion is filed and Defendants oppose the motion. 26 III. MOTION TO AMEND 27 On September 3, 2019, Plaintiff filed a motion for leave to amend his complaint. (ECF 28 No. 86). Plaintiff states that, through discovery, he now knows the names of additional 1 defendants responsible for violating his constitutional rights. 2 Plaintiff alleges that Registered Nurse L. Gant and Licensed Vocational Nurse E. Vitto 3 violated Plaintiff’s constitutional rights, because, after the excessive force incident, they 4 refused to treat Plaintiff’s injuries and tried to cover up the staff assault. J. Loera violated 5 Plaintiff’s constitutional rights because he told L. Gant and E. Vitto not to give Plaintiff 6 medical treatment, even though he was able to see that Plaintiff needed medical attention. 7 Additionally, J. Loera and D. Dozer put Plaintiff in a cage and then took Plaintiff to isolation, 8 despite being able to see that Plaintiff needed medical attention. 9 Plaintiff did not attach a proposed amended complaint to his motion. 10 As the Court previously informed Plaintiff, “Plaintiff may not amend his complaint in 11 this manner.” (ECF No. 76, p. 1). If Plaintiff wants to amend his complaint, in addition to 12 filing a motion for leave to amend, he needs to attach a copy of the proposed amended 13 complaint, that is complete in itself, to the motion. Local Rule 137(c) (“If filing a document 14 requires leave of court, such as an amended complaint after the time to amend as a matter of 15 course has expired, counsel shall attach the document proposed to be filed as an exhibit to 16 moving papers seeking such leave…. If the Court grants the motion, counsel shall file and 17 serve the document in accordance with these Rules and the Federal Rules of Civil and Criminal 18 Procedure.”).2 See also Local Rule 220 (“Unless prior approval to the contrary is obtained 19 from the Court, every pleading to which an amendment or supplement is permitted as a matter 20 of right or has been allowed by court order shall be retyped and filed so that it is complete in 21 itself without reference to the prior or superseded pleading. No pleading shall be deemed 22 amended or supplemented until this Rule has been complied with.”). 23 Therefore, Plaintiff’s motion will be denied, without prejudice. Despite the stay, the 24 Court will give Plaintiff thirty days from the date of service of this order to refile the motion 25 with a signed copy of the proposed amended complaint, that is complete in itself, attached. 26 Defendants response will be due within twenty-one days of the date of the order lifting the stay. 27 28 2 “All obligations placed on ‘counsel’ by these Rules apply to individuals appearing in propria persona.” Local Rule 183(a). 1 ORDER 2 Based on the foregoing, IT IS ORDERED that: 3 1. This case is STAYED pending resolution of the related state criminal 4 proceeding (Kern County Superior Court case number DFO12989A) and until 5 further order of the Court. Defendants are directed to file a notice of resolution 6 of the state criminal proceeding within thirty days of such resolution. 7 2. Plaintiff's motion to compel is DENIED without prejudice. Plaintiff has twenty- 8 one days from the date of the order lifting the stay to refile the motion. 9 3. Plaintiff's motion for leave to amend is DENIED without prejudice. Plaintiff 10 has thirty days from the date of service of this order to refile the motion with a 11 signed copy of the proposed amended complaint (that is complete in itself) 12 attached. Defendants response is due within twenty-one days of the date of the 13 order lifting the stay. 14 1s IT IS SO ORDERED. ‘6 |! Dated: _ October 24, 2019 [Jee Sy — 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28