United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
DECISION AND ENTRY: (1) GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION FOR A STAY OF DISCOVERY (DOC.
19); AND (2) ORDERING A LIMITED STAY OF DISCOVERY WITH REGARD
TO DEFENDANT JUDITH L. SEALEY FOR NINETY (90) DAYS
Michael J. Newman United States Magistrate Judge
U.S.C. §1983 civil rights case is before the Court on
the motion to stay discovery filed by Defendants Sheriff Phil
Plummer, Judith L. Sealey, Chuck Crosby, Scott Landis, and
the Montgomery County, Ohio Board of County Commissioners.
Doc. 19. Plaintiff filed a memorandum in opposition. Doc. 21.
Thereafter, Defendants filed a reply memorandum. Doc. 23.
After briefing the motion, the parties filed notices of
supplemental facts. Docs. 25, 26. The Court heard oral
argument, on the merits of the motion, on May 30, 3017.
Defendants' motion is now ripe for
case arises from an incident that occurred at the Montgomery
County, Ohio Jail (“Jail”) on November 15, 2015.
Doc. 1 at PageID 3. On that date, Plaintiff Amber Swink was
arrested and placed into the custody of Defendant Phil
Plummer, the Montgomery County Sheriff, at the Jail.
Id. at PageID 3-4. Plaintiff was allegedly
intoxicated and belligerent. Id. at PageID 4. As a
result of her belligerence, Plaintiff was physically
restrained in handcuffs and leg-restraints. Id. at
being restrained, Plaintiff allegedly remained belligerent
while at the Jail and Defendant Sealey purportedly pepper
sprayed Plaintiff in an effort to stop her disruptive
behavior. Id. Thereafter, Defendant Sealey ordered
that Plaintiff be placed in a full restraint chair.
Id. at PageID 4-5. Two corrections officers at the
Jail -- who are not parties to this lawsuit -- complied with
Defendant Sealey's order and Plaintiff remained
restrained in the chair in an isolation room for over an
hour-and-a-half. Id. Thereafter, Plaintiff began
yelling and Defendant Sealey, after warning Plaintiff to stop
yelling, allegedly pepper sprayed Plaintiff again until she
became unconsciousness in the restraint chair and required
revival by Jail medical personnel. Id. at PageID
alleges that after the incident, Sealey failed to complete a
use-of-force report as required by Jail policy. Id.
at PageID 7-8. Further, Defendant Sealey's superiors,
Defendants Crosby and Plummer -- despite knowing of the
incident and Sealey's failure to complete the required
report -- never demanded a report be completed. Id.
at PageID 7-8. Instead, Defendants, knowing of potential
criminal and civil litigation arising from the incident,
allegedly conspired to destroy video and other evidence of
the incident. Id. at PageID 8.
now brings this civil rights suit alleging a number of claims
against Defendants Plummer, Sealey and Crosby in their
individual and official capacities including, inter
alia, claims of excessive force; maintaining
unconstitutional customs, policies and procedures at the
Jail; and failure to supervise and discipline Defendant
Sealey. Id. at PageID 10-14. Defendants seek to stay
all discovery in this case pending completion of criminal
investigations by the United States Department of Justice and
the City of Dayton. Doc. 19 at PageID 176. In support of the
requested stay of discovery, Defendants argue that, in light
of the pending criminal investigations, they are placed in
the position of having to choose between invoking their Fifth
Amendment rights against self-incrimination and prejudice
their defense of this civil suit, or waive their Fifth
Amendment privilege against self-incrimination. Id.
regard to criminal investigations, the Court notes that
evidence presented by Defendants shows that there are
potentially three prosecuting authorities who have
investigated the incident: (1) the United States Department
of Justice (“DOJ”); (2) the Montgomery County,
Ohio Prosecutor; and (3) the City of Dayton. A grand jury in
Montgomery County, Ohio declined to indict Defendant Sealey.
Doc. 25-1 at PageID 243. A subpoena from the United States
Attorney's Office for the Southern District of Ohio
reveals a potential investigation into the conduct of
Defendant Sealey. See doc. 19-1 at PageID 189-90.
The City of Dayton may potentially bring misdemeanor criminal
charges arising from the incident, but the information before
the Court again shows that Defendant Sealey is the individual
under investigation. Id. at PageID 185. To date, no
criminal charges have been filed against anyone arising from
the incident involving Plaintiff.
district court may stay a civil proceeding during the
pendency of a parallel criminal proceeding” and the
court maintains “broad discretion” in so
deciding. United States v. Certain Real Prop. 566
Hendrickson Blvd., Clawson, Oakland Cnty., Mich., 986
F.2d 990, 997 (6th Cir. 1993) (citation omitted); see
also F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611,
627 (6th Cir. 2014). In considering requests for a stay
during the pendency or impendency of criminal proceedings,
courts must be cognizant that “simultaneous criminal
and civil cases involving the same or closely related facts
may give rise to Fifth Amendment concerns sufficient to
warrant a stay of the civil proceedings.” Chao v.
Fleming, 498 F.Supp.2d 1034, 1037 (W.D. Mich. 2007)
(citations omitted). Even so, “[a] stay of a civil case
is an extraordinary remedy that should be granted only when
justice so requires.” Id. (citations omitted).
determining whether justice requires a stay of proceedings,
courts examine “the specific circumstances [of a case],
taking into account the competing interests involved.”
Id. In addition to “the extent to which the
defendant's [F]ifth [A]mendment rights are implicated[,
]” district courts should also consider the following
1) the extent to which the issues in the criminal case
overlap with those presented in the civil case; 2) the status
of the case, including whether the defendants have been
indicted; 3) the private interests of the plaintiffs in
proceeding expeditiously weighed against the prejudice to
plaintiffs caused by the delay; 4) the private interests of
and burden on the defendants; 5) the interests of the courts;
and 6) the public interest.
F.T.C., 767 F.3d at 627. “[T]he strongest case
for deferring civil proceedings until after completion of
criminal proceedings is where a party under indictment for a
serious offense is required to defend a civil or
administrative action involving the same matter.”
Sec. & Exch. Comm'n v. Dresser Indus., Inc.,
628 F.2d 1368, 1375-76 (D.C. Cir. 1980). Notably, “the
burden is on the party seeking the stay to show that there is
pressing need for delay, and that neither the other party nor
the public will suffer harm from entry of the ...