Benally v. City of Albuquerque et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
REESE BENALLY,
Plaintiff,
v. No. 1:25-cv-00611-KG-LF
CITY OF ALBUQUERQUE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants City of Albuquerque, Baca, Johnson, and
Cordova’s joint motion to stay proceedings under the Servicemembers Civil Relief Act, 50
U.S.C. § 3901 (“SCRA”), Doc. 29. Plaintiff Reese Benally responded to the motion, Doc. 32,
and Defendants replied, Doc. 33. For the reasons below, the motion is granted, and all
proceedings are stayed until July 29, 2026, or until Defendant Wilensky’s return to the United
States, whichever is sooner. Defendant Wilensky’s counsel shall promptly file notice with the
Court upon his return.
I. Background
This case arises out of an officer-involved shooting in Albuquerque, New Mexico. See
Doc. 1 at 2. Plaintiff claims that at around midnight on June 29, 2023, Albuquerque police
officers, including Defendants Baca, Wilensky, Johnson, and Cordova, arrived at a bus stop near
the intersection of Lomas and Louisiana boulevards and “exited their patrol cars with their
firearms drawn in the direction of” where Plaintiff was standing. Id. at 6. Plaintiff alleges that
after yelling “drop the knife,” officers opened fire, striking him and two other men. Id. Plaintiff,
who claims he “was unarmed and had committed no crime,” was shot six times resulting in
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“hospitalization and surgery.” Id. Based on this incident, Plaintiff filed a six-count complaint on
June 30, 2025. See generally Doc. 1.
During the fall of 2025, Defendant Wilensky was deployed as a “member of the National
Guard” to Africa “without the ability to make contact with his assigned counsel.” Doc. 29 at 2.
As a result, he has not appeared in this matter.
Because of Wilensky’s deployment, Defendants City of Albuquerque, Baca, Johnson, and
Cordova jointly move this Court to stay of the proceedings under the SCRA. See Doc. 29. They
argue that a stay will promote judicial efficiency and protect “discovery efforts and the right to
discovery from Mr. Wilensky necessary to pursue their own dispositive motion practice.” Id. at
5. Specifically, moving Defendants assert that they will be unable “to raise a motion for
summary judgment without an affidavit or declaration from Mr. Wilensky” or “raise their own
motions for...qualified immunity without discovery from Mr. Wilensky.” Id.
Plaintiff opposes the motion, arguing that it is “premature” to stay the litigation at this
stage. Doc. 32 at 3. He also contends that the moving Defendants “are not entitled to the relief
afforded to servicemembers under the SCRA.” Id. Accordingly, he requests that the Court
permit the litigation to continue. Id. at 4.
II. Legal Standard
The SCRA authorizes “the temporary suspension of judicial and administrative
proceedings and transactions that may adversely affect the civil rights of servicemembers during
their military service.” 50 U.S.C. § 3902(1). Relevant here, it provides two scenarios where
courts “shall grant a stay” for at least ninety days. 50 U.S.C. § 3931(d) (emphasis added). First,
a court shall grant a stay if it determines “there may be a defense to the action and a defense
cannot be presented without the presence of the [servicemember] defendant.” Id. A stay shall
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also be granted if a court determines that “after due diligence, counsel has been unable to contact
the [servicemember] defendant or otherwise determine if a meritorious defense exists.” Id.
If a servicemember’s codefendants are not military servicemembers, the plaintiff “may
proceed against those other defendants with the approval of the court.” 50 U.S.C. § 3935(b). In
exercising its discretion, a court may consider “prejudice to the servicemember, prejudice to the
plaintiff, and judicial economy.” Hale v. Chaves Cty. Bd. of Comm’rs, 2014 WL 12792260, at
*1 (D.N.M.).
III. Analysis
The Court grants Defendants’ motion and stays all proceedings against Defendants. First,
Defendant Wilensky is entitled to a stay. He is currently on active-duty service in another
continent, has not been in contact with his counsel, and has not made an appearance in this
matter. See Doc. 29-1 at 2. Because his counsel has been unable to contact him or “mount any
defenses on his behalf,” the SCRA entitles Defendant Wilensky to a stay of at least 90 days. See
id. at 3; § 3931(d)(2).
The moving Defendants are also entitled to a stay. This action arises out of a single
encounter between the Defendant officers and Plaintiff. The complaint does not distinguish
between the actions of Defendants Baca, Wilensky, Johnson, and Cordova. See generally Doc.
1. As a result, the claims against Defendant Wilensky “are intertwined with those of the other
defendants.” Reynolds v. Albuquerque Police Dep’t, 2022 WL 621548, at *3 (D.N.M.) (stayed
all proceedings until return of officer defendant who was on active service). Without Defendant
Wilensky’s concurrent participation, all the Defendants may suffer unfair prejudice in effectively
mounting a defense.
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Plaintiff’s counterarguments are unavailing. He contends that “it supports judicial
economy to allow [him] to engage in discovery” without Defendant Wilensky’s participation.
Doc. 32 at 5. Not so. Allowing Plaintiff to proceed against the non-service member Defendants
would lead to duplicate hearings on discovery and scheduling matters, hampering judicial
economy. See Hale, 2014 WL 12792260, at *1 (noting that “judicial economy is served by
keeping all parties in the same place in the litigation”). On balance, the factors weigh in favor of
the Court exercising its discretion to stay the entirety of this action.
IV. Conclusion
For the reasons above, the motion, Doc. 29, is granted. All proceedings are stayed until
Wednesday, July 29, 2026, or until Defendant Wilensky’s return from his current active-duty
service obligation, whichever is sooner. Defendant Wilensky’s counsel shall file notice with the
Court advising when he is available, at which time the case may proceed.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access system.
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