UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
August 28, 2008
DONNA RIVERS, PLAINTIFF,
M. HUCKEBA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER STAYING PROCEEDINGS AGAINST DEFENDANT HUCKEBA (Docs. 26 and 27)
Plaintiff was a former inmate at the Fresno County Jail and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 16, 2008, defendants filed notice that defendant Huckeba filed a voluntary Chapter 7 bankruptcy petition on March 31, 2008, and that plaintiff had initiated a related adversary proceeding on April 11, 2008. (Doc. 26).
11 U.S.C. §362(a) provides for an automatic say upon the filing of a bankruptcy petition under any chapter of the Bankruptcy Code, with limited exceptions, none of which apply in the present case. Accordingly, plaintiff's action against defendant Huckeba is subject to an automatic stay pursuant to 11 U.S.C. §362(a).
The court recognizes that an automatic stay does not always preclude an action against other non-debtor defendants. See U.S. v. Dos Cabezas Corp., 995 F. 2d. 1486, 1491 (9th Cir., 1993). (ordinarily, unless assets of bankruptcy estate are at state, automatic stay does not extend to actions against parties other than debtor, such as co-debtors and sureties). In the present case, the court screened plaintiff's complaint on October 25, 2007 and found service of the complaint appropriate on defendant Huckeba. (Doc. 9). Notwithstanding the fact that the Fresno County Sheriff's Department ("Department") was never served with the complaint, the Department and defendant Huckeba jointly filed a motion to dismiss the action on May 2, 2008, and the Department has thereby appeared in this action. (Doc. 14). Although this action is stayed against defendant Huckeba, this case shall proceed against defendant Fresno County Sheriff's Department.
If plaintiff wishes to request relief from the stay, she must bring a motion under Bankruptcy Rule 9014. The bankruptcy court has exclusive jurisdiction to grant relief from the stay. In re Darrell Creek Assocs., L.P., 187 B.R. 908 (Bankr. D.S.C. 1995).
Accordingly, the Court HEREBY ORDERS that:
1. This action is STAYED against defendant Huckeba pursuant to 11 U.S.C. §362(a); and
2. Defendant Huckeba is ORDERED to file a status report within ten days of the conclusion of the bankruptcy proceeding.
IT IS SO ORDERED.
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