Schultz v. California Department of Corrections and Rehabilitation et al

Filing 67

ORDER GRANTING Defendant's Renewed Motion to Stay Action Due to Military Duty 63 ; Action STAYED to and Including April 1, 2015; Status and Scheduling Conference set for 5/7/2015 at 01:30 PM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng, signed by Magistrate Judge Michael J. Seng on 9/29/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNETH SCHULTZ,

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CASE No. 1:11-cv-00988-LJO-MJS (PC)
ORDER GRANTING DEFENDANT’S
RENEWED MOTION TO STAY ACTION
DUE TO MILITARY DUTY

Plaintiff,

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v.

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

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(ECF No. 63)

Defendant(s).

ACTION STAYED TO AND INCLUDING
APRIL 1, 2015
STATUS AND SCHEDULING
CONFERENCE: MAY 7, 2015, AT 1:30
P.M., IN COURTROOM 6 (MJS)

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Plaintiff Kenneth Schultz, a state prisoner incarcerated at Corcoran State Prison
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(“CSP”), is proceeding pro se and in forma pauperis in this civil rights action filed June

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15, 2011 pursuant to 42 U.S.C. § 1983. This matter proceeds on a claim of medical
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indifference against Defendant Kim, M.D. On July 29, 2014, Defendant Kim moved to
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stay the action because, and while, he is on active military duty. On August 22, 2014,
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the Court denied the motion, as lacking an appropriate evidentiary showing, but did so
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without prejudice to refiling.
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Before the Court is Defendant’s renewed motion to stay the action on grounds

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his military duty prevents appearance in this action until his deployment expires. Plaintiff
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filed opposition to the renewed motion. Defendant replied to the opposition. Plaintiff filed
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a surreply reiterating arguments in his opposition.1 The matter is deemed submitted for

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ruling. Local Rule 230(l).
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Defendant Kim is currently serving in Afghanistan as a member of the United
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The Court considered the surreply, though unauthorized, because Plaintiff proceeds pro se.

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1 States Navy. Attached to his motion is a letter from the officer in charge of U.S. Naval
2 Forces Central Command Forward Headquarters Afghanistan, Captain E.J. Eder,
3 stating that Defendant will be in Afghanistan until at least April 1, 2015, that military
4 leave is not authorized, and that Defendant’s military duty prevents his appearance in
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The Service Members Civil Relief Act, 50 App. U.S.C. §§ 501 to 596, known until

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

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

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50 App. U.S.C. § 522(b)(2).
Defendant Kim has satisfied these conditions and is therefore entitled to a stay

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pending completion of his current deployment to Afghanistan on or about April 1, 2015.
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The fact that Kim is deployed and on duty overseas materially affects his ability to

24 conduct a defense in this case. See e.g., Franklin v. Police Officer Balestrieri, No. 00
25 Civ. 5883(BJS)(DFE), 2002 WL 54600, at *1 (S.D.N.Y. Jan. 15, 2002) (finding that
26 activation of defendant Navy reservist officer to military duty materially affected his
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ability to conduct his defense). If Defendant requires a continuation of the stay, he may

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1 apply for such relief pursuant to 50 U.S.C. app. § 522(d).
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Plaintiff’s opposition and surreply, arguing for bench trial and disputing that

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Defendant’s military service leaves him unable to participate in the action, is refuted by

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the evidence presented in support of the renewed motion for stay.
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Accordingly, it is HEREBY ORDERED that:
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Defendant’s renewed motion (ECF No. 63), is GRANTED such that the

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action is stayed against Defendant Kim until completion of his current

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military deployment to Afghanistan on or about April 1, 2015,

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2.

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The current September 12, 2014 deadline for Defendant to file and
oppose dispositive motions is vacated and shall be reset when the stay is

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lifted,
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any changes in Kim’s military deployment and duty status, and

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Counsel for Defendant Kim is directed to notify Plaintiff and the Court of

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This matter is set for status and scheduling conference on May 7, 2015, at
1:30 p.m. in Courtroom 6 (MJS), counsel for Defendant is required to

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arrange for the participation of Plaintiff in the status conference and to

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initiate the conference by calling the following conference call number and

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access code. Conference Call Number: 1-888-204-5984, Access Code:

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4446176.

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24 IT IS SO ORDERED.
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Dated:

September 29, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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