UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21058
BRUCE WHITE,
Plaintiff-Appellant,
VERSUS
SCOTT BLACK,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
September 17, 1999
Before KING, Chief Judge, and STEWART and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Bruce White, Texas prisoner #289794, appeals the dismissal of
his 42 U.S.C. § 1983 complaint against Scott Black. We modify the
order of dismissal to an order staying the proceedings and, as
modified, affirm.
FACTS AND PROCEEDINGS
White filed a pro se, in forma pauperis complaint alleging
that Black, a prison guard, assaulted him. Black was never served
and did not make an appearance. The Attorney General of Texas, who
was not named as a defendant, filed an “amicus curiae motion to
dismiss.” The Attorney General averred that White’s complaint
should be dismissed without prejudice because Black is currently on
active duty status with the United States Air Force, citing the
1
Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. App. §§
501-591 (“the Act”). The Attorney General stated that if Black
were served and if he requested representation from the State of
Texas, the ability to conduct Black’s defense would be materially
altered by the fact that he was on active duty.
White opposed the motion, arguing that the Attorney General,
who was not named as a defendant, did not have standing to invoke
the Act. White also alleged that the Attorney General failed to
produce any evidence to support the assertion that defense of the
suit would be materially altered by the fact that Black was on
active duty.
The district court dismissed the suit without prejudice. With
regard to White’s standing argument, the court found that the
relief afforded by the Act could be raised by the court on its own
motion. See 50 U.S.C. app. § 521. The district court did not make
any factual findings with regard to White’s contention that the
Attorney General failed to show that defense of the suit would be
materially affected by the fact that Black was on active duty.
DISCUSSION
Section 521 of the Act provides that
[a]t 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 [sections 501 to 591 of this
Appendix], 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 this military service.
2
We review a court’s order staying proceedings pursuant to § 521 for
abuse of discretion. See Boone v. Lightner, 319 U.S. 561, 575
(1945).
White reiterates on appeal his argument that the Attorney
General had no standing to invoke the protections of the Act.1
That argument is without merit. As the district court noted, the
Act allows the court to afford the available relief on its own
motion.
More problematic is the district court’s finding that it had
authority to dismiss the complaint without prejudice, as opposed to
staying the action. Although the district court acknowledged that
§ 521 normally envisions a stay rather than a dismissal, the court
found that a dismissal without prejudice with “appropriate
safeguards” was an equally suitable remedy. The district court
went on to identify §§ 524 and 525 as providing such safeguards.
Section 524 provides that a stay under § 521 shall “be ordered for
the period of military service and three months thereafter . . .”
Section 525 provides that a period of limitations is tolled for the
duration of service.
The language of § 521 clearly provides that the relief
afforded is a stay of the proceedings. See § 521. The canons of
statutory construction dictate that when construing a statute, the
court should give words their ordinary meaning and should not
1
The Attorney General entered the case as Amicus Curiae rather
than as a representative of Black. We therefore do not base our
decision on the statutory provision allowing “some person on
[Black’s] behalf” to apply for the stay.
3
render as meaningless the language of the statute. See Boone, 319
U.S. at 565. Further, as White argues, in order to ensure the
timely reinstatement of his action, i.e., within ninety days2 of
Black’s discharge from the Air Force, White will have to
continually monitor Black’s military status. Due to White’s
imprisonment and lack of means and information to keep up with
Black’s military status and whereabouts, White has little realistic
chance of reinstating the action in a timely manner. We therefore
conclude that the district court was without authority to dismiss
White’s complaint without prejudice under § 521. Rather, the
appropriate remedy was a stay.
Finally, White argues that the district court abused its
discretion in finding that White was entitled to the protections
afforded by § 521 because there is nothing in the record to support
a finding that Black’s defense of the suit would be materially
affected by the fact that he is on active duty. The Supreme Court
has declined to set forth rigid rules concerning the burden of
proof in this matter, instead entrusting the matter entirely to the
discretion of the trial court. See Boone, 319 U.S. at 569. A
court may ask either party to come forward with the facts necessary
2
The stay contemplated by § 521 encompasses the period of the
litigant’s military service and “sixty days thereafter.” In this
case, however, the district court dismissed the action without
prejudice and tolled the running of limitations from the
commencement of the action until 90 days after defendant’s release
from active duty. Because the parties do not challenge the
additional 30 days and because of the broad discretion granted the
district court by the statute, we find no error in allowing White
90 days after Black’s release from active duty to pursue his
claims.
4
to establish or disprove the serviceman’s entitlement to the stay.
See id. at 569-70. Here, the district court was provided
information concerning Black’s rank and duty station as well as the
court’s own docket and the nature of the suit. We cannot say that,
given the facts of this case, the district court abused its
discretion in determining that Black was entitled to relief under
the Act.
CONCLUSION
Based on the foregoing, we modify the court’s order from
DISMISSAL to a STAY of proceedings for the period of Black’s active
duty military service and 90 days thereafter. See § 524. As
modified, we affirm.
MODIFIED and AFFIRMED.
5