Rozenman v. Phoenix, City of et al

Filing 29

ORDER, this case is stayed pending the resolution of Plaintiff's criminal case currently pending in Maricopa County Superior Court; the Clerk must indicate on the docket that this case is stayed; beginning on the first business day of December 2 012, and on the first business day of every third month thereafter, Plaintiff must file with the Court a "Notice of Status" that informs the Court of the status of Plaintiff's criminal case currently pending in Maricopa County Superior Court; if Plaintiff fails to timely file any "Notice of Status" required by this Order, the Clerk must, without further notice, enter a judgment of dismissal of this action without prejudice. Signed by Judge G Murray Snow on 10/17/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dimitri Rozenman,
Plaintiff,

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vs.

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City of Phoenix, et al.,
Defendants.

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No. CV 12-230-PHX-GMS (LOA)
ORDER

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On February 1, 2012, Plaintiff Dimitri Rozenman, who is represented by attorney

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Kenneth W. Schutt, Jr., filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In a

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March 5, 2012 Order, the Court ordered that the case be served on Defendants, but did not

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require Defendants to answer the Complaint. Instead, the Court gave Defendants 60 days

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after service of the Complaint to file a brief: (1) providing the Court with the status of any

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criminal case against Plaintiff related to the incidents described in the Complaint, and

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(2) discussing the applicability of Younger v. Harris, 401 U.S. 37 (1971); Gilbertson v.

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Albright, 381 F.3d 965 (9th Cir. 2004); and Wallace v. Kato, 549 U.S. 384 (2007). The

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Court gave Plaintiff 30 days after service of the brief to file a responsive brief and gave

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Defendants 15 days after service of the responsive brief to file a reply brief, if they so

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desired.

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On July 23, 2012, the County Defendants1 submitted a Brief stating that Plaintiff’s

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criminal case was ongoing; that the case should be stayed pursuant to Younger, Gilbertson,

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and Wallace; and that dismissal of the action would be warranted, pursuant to Heck v.

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Humphrey, 512 U.S. 477 (1994), if Plaintiff is convicted in the criminal case.

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The same day, the City Defendants2 submitted a brief stating although Plaintiff’s

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criminal case is ongoing, the Court should not stay the case. The City Defendants state that

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although the Court could stay the case pursuant to Younger, Gilbertson, and Wallace, “doing

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so would be a waste of judicial resources and would simply prolong the inevitable dismissal

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of Plaintiff’s claims on the pleadings.” The City Defendants claim that all of Plaintiff’s

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claims are based on his indictment and vacated conviction and that, regardless of the outcome

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of the re-trial, his claims against the City Defendants are precluded because they are time

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barred, are subject to dismissal based on absolute immunity or because his original

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conviction was vacated, and/or fail to state a claim. The City Defendants contend that they

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should not be “required to preserve evidence indefinitely and wait to defend against

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Plaintiff’s non-viable claims that will undoubtedly be dismissed.”

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On August 22, 2012, Plaintiff filed a responsive Brief, arguing that the case should

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be stayed pending the outcome of his criminal case, which is scheduled for trial in January

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2013. Plaintiff alleges, incorrectly, that the parties all agree that the matter should be stayed.

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Plaintiff requests an additional fourteen days to file an additional response “[i]f the Court

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wishes the Plaintiff to address the additional issues regarding dismissal of certain claims

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[raised by the City Defendants] and a separate Motion by Plaintiff to Amend to cure any

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technical defects in the existing Complaint.”

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Defendants Maricopa County, Maricopa County Attorneys Andrew Thomas and Bill
Montgomery, and Deputy County Attorney Rebekah Pritchard are represented by attorneys
Lisa S. Wahlin and Asha Sebastian.
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Defendants City of Phoenix; City of Phoenix Police Department; City of Phoenix
Police Chief Jack Harrisl Detectives Edward Warner, Saul Ayala, Rafael Egea, Michael
Carmody, Christopher Eyrich, Keith Moffit, and John Justus; and Sergeant Bill Long are
represented by attorneys Lori V. Berke and Jody C. Corbett.
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On August 27, 2012, the City Defendants filed a Reply, stating that they do not

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believe a stay is appropriate and that the Court should dismiss Plaintiff’s claims against them.

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The City Defendants indicated that they have no objection to the Court giving Plaintiff

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fourteen days to address their substantive arguments, as long as they are permitted to file a

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reply.

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The Court, in its discretion, will stay this case pending the resolution of Plaintiff’s

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criminal case. The Court declines to address at this point the substantive arguments raised

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by the City Defendants; doing so at this point would be a needless waste of judicial resources

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because, if convicted, Plaintiff’s § 1983 claims may be barred by Heck. Plaintiff concedes

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as much, stating in his responsive Brief that, after the criminal case is resolved, “many of the

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issues raised by the City of Phoenix Defendants may be rendered moot.”
The Court will require Plaintiff to file a report reflecting the status of his pending

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criminal case and file additional status reports to the Court every 90 days.

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IT IS ORDERED:

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(1)

This case is stayed pending the resolution of Plaintiff’s criminal case currently

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pending in Maricopa County Superior Court. The Clerk of Court must indicate on the docket

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that this case is stayed.
(2)

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Beginning on the first business day of December 2012, and on the first

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business day of every third month thereafter, Plaintiff must file with the Court a “Notice

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of Status” that informs the Court of the status of Plaintiff’s criminal case currently pending

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in Maricopa County Superior Court.

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(3)

If Plaintiff fails to timely file any “Notice of Status” required by this Order, the

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Clerk of Court must, without further notice, enter a judgment of dismissal of this action

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without prejudice.

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DATED this 17th day of October, 2012.

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