Schultz v. California Department of Corrections and Rehabilitation et al

Filing 62

ORDER denying 59 Motion to Stay signed by Magistrate Judge Michael J. Seng on 8/21/2014. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
EASTERN DISTRICT OF CALIFORNIA
10
11

KENNETH SCHULTZ,

12

Plaintiff,

13
14

CASE No. 1:11-cv-00988-LJO-MJS (PC)
ORDER DENYING WITHOUT
PREJUDICE DEFENDANT’S MOTION
TO STAY ACTION DUE TO MILITARY
DUTY

v.

15

STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, et al.,

16

Defendant(s).

(ECF No. 59)

17
18
I.

PROCEDURAL BACKGROUND

19
Plaintiff Kenneth Schultz, a state prisoner incarcerated at Corcoran State Prison
20

(“CSP”), is proceeding pro se and in forma pauperis in this civil rights action filed June

21
15, 2011 pursuant to 42 U.S.C. § 1983. This matter proceeds on a claim of medical
22
indifference against Defendant Kim, M.D.
23

Before the Court is Defendant’s motion to stay the action on grounds he is on

24
active military duty, deployed overseas and unable to participate in his defense. Plaintiff
25
filed opposition to the motion. Defendant replied to the opposition. The matter is
26
deemed submitted for ruling. Local Rule 230(l).
27
28

1

1 II.

DISCUSSION

2

The Service Members Civil Relief Act, 50 App. U.S.C. §§ 501 to 596, known until

3 2003 as the Soldiers' and Sailors' Civil Relief Act, 50 App. U.S.C. § 501, provides for the
4 suspension of legal proceedings involving persons in military service when necessary to
5 avoid prejudice to their civil rights. 50 App. U.S.C. § 502. Specifically, the Act allows for
6 a stay of any civil action in which a service member is a party if certain conditions are
7 met. To satisfy the conditions under which a stay may be granted, an application for
8 stay must include the following:
9
10

(A) A letter or other communication setting forth facts stating the manner in which
current military duty requirements materially affect the servicemember's ability to
appear and stating a date when the servicemember will be available to appear.

11
12
13

(B) A letter or other communication from the servicemember's commanding
officer stating that the servicemembers' current military duty prevents
appearance and that military leave is not authorized for the service member at
the time of the letter.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

50 App. U.S.C. § 522(b)(2).
It appears that courts have not just the right, but an obligation to protect the civil
rights of those service members whose rights might otherwise be prejudiced as a result
of their military service. See Jamaica Savings Bank v. Bryan, 25 N.Y.S.2d 17, 19-20
(1941) (where a soldier or sailor in the service of the United States would be
handicapped by reason of such military, the court is required to protect the interests of
such soldier or sailor so as to prevent prejudice to his rights by reason of such service).
However, it also appears that the service member has an obligation to demonstrate for
the court the manner in which his military duty affects his ability to appear in a civil
proceeding, and for how long, and to otherwise satisfy the Court that his rights will be
prejudiced in the absence of a stay.
Here, Defendant Kim has not made a sufficient showing to warrant a stay under
the Service Members Civil Relief Act. In support of the motion, counsel for Defendant
Kim submitted only a copy of Kim’s mobilization orders and defense counsel’s

2

1 representation that Kim’s active duty, which will last at least a year, makes it impossible
2 for him to participate in the action. Plaintiff disputes the contention that Defendant’s
3 military service leaves him unable to participate in the action.
Even if the moving papers had included the missing facts described above, they

4

5 do not state when Defendant will be available to appear or include the requisite
6 confirmation from an appropriate military official.
7 III.

CONCLUSION AND ORDER

8

In the absence of the showing required by the Service Members Civil Relief Act,

9 the Court DENIES Defendant’s motion for stay (ECF No. 59), without prejudice to
10 refiling the same with the appropriate evidentiary showing.
11
12
13

IT IS SO ORDERED.
Dated:

August 21, 2014

/s/

14

UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24

Michael J. Seng

.

25
26
27
28

3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4