1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MILTONOUS Q. KINGDOM, Case No. 2:23-cv-0874-JDP (P) 12 Plaintiff, 13 v. ORDER 14 G. HERRERA, 15 Defendant. 16 17 18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights 19 case alleging that defendant correctional G. Herrera used excessive force against him. ECF No. 20 1. On January 24, 2024, the court issued a discovery and scheduling order that set the dispositive 21 motion deadline at November 21, 2024. ECF No. 23. On November 18, 2024, defendant sought 22 an extension of time, until January 20, 2025, to file a dispositive motion—a request which the 23 court granted. ECF No. 26. Defendant then filed a second request for an extension of time until 24 January 27, 2025; the court also granted this request. ECF No. 28. Now, defendant has filed a 25 motion to stay because defendant is deployed. ECF No. 29. 26 In the motion, defendant’s counsel explains that defendant has been “placed on extended 27 miliary leave and is actively deployed.” Id. at 1. Counsel further explains that a stay is necessary 28 1 “[b]ecause it is not apparent when Defendant’s deployment will be complete or how feasible it is 2 to communicate with him as federal property elsewhere in the world, Defendant wishes not to 3 mistakenly ascribe a date of return that may prove inaccurate.” ECF No. 29-1 at 2. Five days 4 later, defense counsel filed a declaration from T. Edwards-Zinn, a personnel supervisor at 5 California State Prison-Sacramento. ECF No. 30. Mr. Edward-Zinn stated that defendant was 6 placed on miliary leave in August 2024 and that defendant’s leave is expected to be completed by 7 June, though that date is subject to change. Id. at 2. 8 While not argued by defendant, the court will look to Servicemembers’ Civil Relief Act 9 (“SCRA”) to assess whether to temporarily stay these proceedings.1 The SCRA permits a court 10 to temporarily stay any court proceedings “that may adversely affect the civil rights of 11 servicemembers during their military service.”

. The purpose of the SCRA is 12 “to provide for, strengthen, and expedite the national defense” by protecting servicemembers 13 from the burden of litigation and to enable them “to devote their entire energy to the defense 14 needs of the Nation.”

“The language of [the Act] is clear. Where the serviceperson seeking 15 the stay is a defendant, the decision to grant a stay . . . turns on the discretionary determination of 16 whether the serviceperson’s ability to conduct his defense will be materially affected by reason of 17 his military service.” Bown v. Hammerskin Nation,

, at *2 (C.D. Cal. May 18 24, 2001). 19 Pursuant to the SCRA and “upon application by the servicemember,” a court shall stay a 20 civil action involving a party that “is in military service or is within 90 days after termination of 21 or release from military service” for a period of no less than ninety days. 50 U.S.C. 22 §§ 3932(a)(1), (b)(1). An application for stay has two requirements: (1) a “letter or other 23 communication” from the servicemember expressing why his or her military service will affect 24 his or her ability to appear and providing a date when the servicemember will be able to appear; 25 and, (2) a letter or other communication from the servicemember’s commanding officer stating 26 the servicemember’s current military duty prevents his or her appearance and that military leave 27

28 1 Defendant did not articulate a legal basis for his motion to stay. 1 || is not authorized at the time of the communication. See

(b)(2). If the conditions 2 | for stay are met, the servicemember “may apply for an additional stay based on continuing 3 | material affect of military duty on the servicemember’s ability to appear.” 50 U.S.C. 4 | § 3932(b)(2)(d). 5 Defendant has not complied with either requirement under

(b)(2). The 6 | motion provides no communication from either defendant or his commanding officer. Indeed, 7 | defense counsel’s declaration does not state that he has spoken with defendant or that defendant’s 8 | active duty will prevent him from participating in the case. More troubling is the fact that Mr. 9 | Edward-Zinn attested that defendant was deployed in August 2024—eight months after the 10 | court’s order setting the dispositive motions deadline. At no point between August 2024 and 11 |) January 2025 did defense counsel inform the court that he had no contact with defendant due to 12 | defendant’s deployment. Indeed, defendant’s prior motions to modify the dispositive motion 13 | deadline never mention defendant’s deployment or apparent lack of communication. See ECF 14 | Nos. 25 & 27. Defendant’s motion to stay is denied. Defendant may file a renewed motion to 15 | stay that complies with the SCRA or another applicable legal basis. 16 Accordingly, it is hereby ORDERED that defendant’s motion to stay, ECF No. 29, is 17 | DENIED without prejudice. 18 19 IT IS SO ORDERED. 20 ( 1 Oy — Dated: _ February 25, 2025 q——— 21 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE

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