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March 8, 2004.

STEVEN C. ATKINS, Plaintiff,

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

On July 31, 2003, plaintiff Steven C. Atkins, proceeding pro se, brought this civil action against defendants the County of Alameda, City of Alameda, Eileen McAndrew, and Officer Patrick Wyeth of the Alameda Police Department (collectively "defendants"). Atkins' complaint alleges that defendants participated — individually and collectively — in the false arrest, illegal search, and malicious prosecution of plaintiff; in the process, plaintiff alleges, defendants violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. For these supposed violations, plaintiff seeks unspecified sums of compensatory and punitive damages, and he requests an award of costs and attorneys' fees.

On August 20, 2003, defendants filed an answer to plaintiff's complaint. Now before the court is defendants'motion to stay this action, pursuant to the Soldiers'and Sailors Civil Relief Act, for approximately eighteen months. See 50 U.S.C. § 501, et seq. The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows.

  BACKGROUND*fn1 Page 2

  I. The Predicate Arrest and Civil Action

  On November 20, 2002, Stephanie Atkins phoned the Alameda Police Department ("APD") to report that her father, plaintiff Steven Atkins, had been drinking heavily and had left home in his car. Speaking with an APD emergency operator, Stephanie described the make and license number of plaintiff's car, adding that she believed he was planning to purchase more alcohol. APD dispatched Officer Wyeth to respond to Stephanie's call. Officer Wyeth could not locate plaintiff (or plaintiff's vehicle) in the areas surrounding plaintiff's home, but, to verify Stephanie's report, he drove to the Atkins' home. Once there, Officer Wyeth spotted a vehicle matching Stephanie's description in the driveway of plaintiff's home. The vehicle's headlights were on; its engine block was warm; and it had been parked such that its bumper pressed against the garage door.

  Wearing a micro-cassette recorder, Officer Wyeth approached plaintiff's front door. An extensive exchange involving Officer Wyeth, plaintiff, Stephanie, and plaintiff's wife, Sheila, followed.*fn2 At the end of the exchange, Officer Wyeth arrested plaintiff and transported him to the APD jail, where plaintiff spent approximately four hours in a detoxification cell; at 12:35 a.m., after being cited and after signing a promise to appear, plaintiff was released. Within two weeks, the district attorney of Alameda County filed charges against plaintiff for driving under the influence and refusing to take a chemical test. Deputy District Attorney McAndrew later learned that neither Sheila nor Stephanie wished to proceed with the prosecution, and, citing insufficient evidence, the district attorney dismissed the criminal action on January 27, 2003. Approximately six months later, plaintiff filed a complaint in this court, alleging a myriad of civil rights violations and seeking unspecified amounts of compensatory and punitive damages.

  II. Wyeth's Military Service

  Officer Wyeth is a Lieutenant Commander in the Active Reserves of the United States Navy. See Wyeth Decl., ¶¶ 1-4. In late 2003, the Navy notified Officer Wyeth that he had been recalled to active duty. According to the terms of his recall, Officer Wyeth's last day of work with the APD was to be December 23, 2003, and he was to commence active service on January 1, 2004. See Wyeth Decl., ¶¶ 2-4. His tour is slated to last approximately eighteen months. Id. During his time in active military service, Page 3 Wyeth will be stationed at a confidential location outside the United States; he will not be able to arrange for a furlough or temporary leave from his sendee, and he will not be able to participate in any litigation-related activities from afar. Id. at ¶¶ 5-6.


  In 1940, Congress passed the Soldiers' and Sailors' Civil Relief Act ("the Act"). See 50 U.S.C. Appx. §§ 501, et seq. The express purpose of the Act is "to provide for, strengthen, and expedite the national defense," see id. at § 510, and the Act makes explicit "provision . . . [for the] suspen[sion of] enforcement of civil liabilities, in certain cases, of persons in the military service of the United States." Id. (adding that such suspension will "enable such persons to devote their entire energy to the defense needs of the Nation"). To that end, section 510 of the Act permits "temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in [military] service." Id.; see also S. Rep. No. 2109, 76th Cong., 3d Sess. 4-6 (1940); 88 Cong. Rec. 5368.*fn3 Section 521 of the Act explains:
At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.
Id. at § 521; see also Boone v. Lightner, 319 U.S. 561, 564-65 (1943) (noting that the Act's use of the mandatory verb "shall" does not eliminate a court's discretion because of the subsequent "unless" phrase). On December 19, 2003, Congress slightly revised the Act, confirming the ongoing vitality of the Act and reaffirming the Act's core mission, viz., to provide for the temporary suspension of particular judicial proceedings. See H.R. 100, Pub.L. No. 108-189, 117 Stat. 2835.

  Courts have long construed the "stay" provision of the Act liberally, retaining broad discretion to consider any and all stay-related factors. See, e.g., Boone, 319 U.S. at 571 (leaving the issue to trial Page 4 courts' "sound sense" and adding that there is no predetermined burden of proof on stay-related questions under the Act); see also Miller v. United States, 29 Fed. Cl. 107, 120 (Fed. Cl. 1993) (citing S. Rep. No. 2109, 76th Cong., 3d Sess. 4 (1940)); Page v. Villa-Real, 1987 WL 10873, *2 (D.D.C. 1987). Still, when assessing motions to stay under the Act, courts typically pay primary attention to two questions: one, whether the serviceperson is stationed overseas, and, two, whether the serviceperson can easily alleviate the need for a stay through, e.g., a furlough or temporary leave from service. See The Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645, 648 (D. Minn. 2002); Rogers v. Tangipahoa Parish Sheriff's Office, 1997 WL 466922, *1 (E.D. La. 1997); Fleet Mortgage Corp. v. Hansen, 1991 WL 134183, * 1 (N.D. III. 1991); Page, 1987 WL 10873, *2; Keefe v. Spangenberg, 533 F. Supp. 49 (D. Okla. 1981); Palo v. Palo, 299 N.W.2d 577 (N.D. 1980).

  For most of plaintiff's claims, these considerations favor issuance of a temporary stay. Officer Wyeth has been stationed abroad, sent by the Navy to fulfill his military service in an overseas — if otherwise confidential — locale. Cf. Palo, 299 N.W.2d at 579 (noting that the Act requires more than a "mere showing" that the defendant is in the military service); see also Hackman v. Postel, 675 F. Supp. 1132, 1133 (N.D. III. 1988). Officer Wyeth has also been unable to obtain temporary leave or furlough from his military service, preventing him from participating in this litigation for at least the foreseeable future. See Wyeth Decl., ¶ 16; see, e.g., Page, 1987 WL 10873, at *2 ("[R]ecent decisions under the Act have denied stays where . . . the party is in the military if not overseas, and can easily arrange for a furlough or leave in order to participate in the case") (emphasis added; citations omitted); Keefe, 533 F. Supp. at 49.*fn4 This absence is, for most of plaintiffs claims, no trifling inconvenience. Since Officer Wyeth was the only law enforcement officer to participate in (and to witness) plaintiff's arrest, he is the sole defendant accused of the predicate constitutional violations.*fn5 And since Officer Wyeth executed the contested arrest, he is also the key defendant regarding plaintiff's claims against the city, all of which depend on a kind of Page 5 derivative liability. See, e.g., Quantanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996) ("The Supreme Court [has] held that a public entity is not liable for § 1983 damages under a policy that can cause constitutional deprivations, when the factfinder concludes that an individual officer, acting pursuant to the [relevant] policy, inflicted no constitutional harm to the plaintiff."); Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 19921 cert. denied, 515 U.S. 1159 (1995).*fn6 Without Officer Wyeth's participation in the litigation of these claims, defendants will be prejudiced immeasurably, and the court's management and consideration of this action will be substantially hindered Cf. Fleet Mortgage, 1991 WL 134183, at * 1.*fn7 For these claims, then, a stay under the Act is appropriate. See 50 U.S.C. Appx. § 510; id. at § 521.

  Consistent with the terms of the Act, however, one issue can move forward at this juncture. On February 2, 2004, defendants Eileen McAndrew and the County of Alameda requested leave of this court to file a motion for summary judgment, arguing that absolute immunity shields them from precisely this type of suit. See Statement of Non-Opp., at 2-3. Officer Wyeth's conduct is not central to the question of the County's and McAndrew's absolute immunity, and this immunity question can be resolved as a matter of law on the basis of available (and stipulated) facts. As a result, the court grants the request for leave, though it does so only ...

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