Halliday et al v. Spjute et al

Filing 344

ORDER Re: 322 Motion to Stay Proceedings, signed by District Judge Anthony W. Ishii on 8/6/2015. (The request for a stay or dismissal without prejudice is DENIED.) (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL IOANE, et al,

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Plaintiffs

CASE NO. 1:07-CV-0620 AWI GSA
ORDER RE: MOTION TO STAY
PROCEEDINGS

v.
KENT SPJUTE, et al,
(Doc. 322)

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Defendants

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The current Plaintiffs are Michael Ioane Sr. and Shelly Ioane who lived at 1521 Fruitland

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Ave., Atwater, CA. They are a married couple involved in tax disputes with United States.

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Current Defendants Kent Spjute, Jean Nole, Jeff Hodges, Brian Applegate, and Michelle Casarez

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are Internal Revenue Service agents. Based on the affidavit of Kent Spjute, the United States was

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able to obtain a search warrant for Plaintiffs’ residence. The search was carried out by the IRS

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agents on June 8, 2006. The manner in which this search was executed forms the basis for the

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claims in this suit.

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Michael Ioane Sr. and Shelly Ioane filed suit on April 20, 2007 and a First Amended

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Complaint shortly thereafter. Docs. 1 and 39. On the motion of the Defendants, the case was

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stayed pending resolution of a criminal case against Michael Ioane Sr. for tax fraud conspiracy,

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based in part on the evidence seized during the search. Crim. Case. No. 09-0142 LJO. Michael

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Ioane Sr. was convicted on October 3, 2011 after a jury trial. He appealed the conviction, but it

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was affirmed. In the meantime, the stay was lifted in this case. Doc. 107. Plaintiffs opposed the

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lifting of the stay. Doc. 103. Since that time, Plaintiffs have made three motions to stay (Docs.

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129, 148, and 254) which were denied (Docs. 138, 158, and 280). This present motion is the yet

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another attempt at reversing that decision. Plaintiffs seek a stay, or alternatively, to be permitted to

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dismiss the suit without prejudice. Doc. 322.

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Plaintiffs argue a stay is justified as “The Bureau of Prisons has refused reasonable

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accommodations to allow Plaintiff to participate in court hearings, make telephone calls to counsel

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and interview experts for designation.” Doc. 322, Plaintiff Brief, at 1. Defendants oppose the

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motion. Doc. 330. As Magistrate Judge Austin has already made clear in a prior order, the court

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has analyzed the arguments in favor of and against a stay under the standard set out by Keating v.

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Office of Thrift Supervision, 45 F.3d 322, 325 (9th Cir. 1995) and found that a stay is not

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warranted. Doc. 138, December 17, 2012 Order, 3:4-13. The specific issue of Michael Ioane Sr.’s

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incarceration was also considered and found insufficient: “Plaintiffs have not provided any legal

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authority to suggest that a stay is more appropriate where a party with an interest in the

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proceedings is incarcerated and thus at a disadvantage with regard to participation in the

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proceedings....This factor, in the circumstances present here, weighs against the imposition of a

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stay of these proceedings.” Doc. 138, Dec. 17, 2012 Order, 4:12-14. Plaintiffs have not shown

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any circumstance that changes the analysis.

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In this motion, Plaintiff attached a response from Taft Correctional Institution (where

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Michael Ioane is being held) which states “concerning the possibility of purchasing additional

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phone time for legal purposes....[you need] documentation from the court(s) to indicate you are

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needed on the phone for legal purposes such as hearings, motions, etc., otherwise, your request

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will not be considered. Additionally, we will not consider additional minutes for the purposes of

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calling paralegals, Co-defendants, or witnesses.” Doc. 322, Ex. A. While being incarcerated does

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make the logistics of prosecuting this case much more difficult for Michael Ioane, it is not a

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sufficient reason for stay or dismissal without prejudice. Taft has cooperated in the past to make

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Michael Ioane available for hearings and reaffirms that commitment in the response provided by

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Plaintiffs. As for general preparation in civil cases, prisoners can not force correctional facilities

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to provide phone time for that purpose; instead, they may have to resort to other means of

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communication (mail and visits). See Bellamy v. McMickens, 692 F. Supp. 205, 214 (S.D.N.Y.

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1988); Pino v. Dalsheim, 558 F. Supp. 673, 675 (S.D.N.Y. 1983).
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The request for a stay or dismissal without prejudice is DENIED.

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IT IS SO ORDERED.
Dated: August 6, 2015
SENIOR DISTRICT JUDGE

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