Doe v. City of Modesto et al

Filing 16

STIPULATION and ORDER to Stay Civil Action Pending Resolution of Criminal Proceedings and Order for Status Reports signed by District Judge Lawrence J. O'Neill on 11/07/2012. Joint Status Reports due by 4/18/2013. Case Stayed.(Flores, E)

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Jacob J. Rivas, SBN 208504
[e-mail]
Law Offices of Jacob J. Rivas
7050 N. Fresno Street, Ste. 208
Fresno, CA 93720
Phone: [phone]
Fax: [phone]

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Attorney for Plaintiff Jane Doe

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Susan Alcala Wood, SBN 156366
City Attorney
James Francis Wilson, SBN 107289
Senior Deputy City Attorney
[e-mail]
Office of the City Attorney
City of Modesto
1010 10th Street, Ste. 6300
P.O. Box 642
Modesto, CA 95353
Phone: [phone]
Fax: [phone]

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Attorneys for Defendants City of Modesto and Modesto Police Department
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Mark A. Jones, SBN 96494
[e-mail]
Scott H. Cavanaugh, SBN 245261
[e-mail]
JONES & DYER
A Professional Corporation
1800 J Street
Sacramento, California 95811
Telephone: [phone]
Fax: [phone]

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Attorneys for Defendant Lee F. Gaines, II

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
(Fresno Division)

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JANE DOE,
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Plaintiff,
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vs.
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LEE F. GAINES, II, MODESTO POLICE
DEPARTMENT AND CITY OF MODESTO and
DOES 1 through 20, inclusive,

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Defendants.
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NO. 1:12-CV-01255-LJO-GSA
STIPULATION AND ORDER TO STAY
CIVIL ACTION PENDING
RESOLUTION OF CRIMINAL
PROCEEDINGS AND ORDER FOR
STATUS REPORTS

STIPULA TIO N A N D O R D ER TO STA Y C IVIL A CTIO N PEN D IN G R ESO LU TION O F CRIM IN AL PR O C EED IN G S

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The parties, by and through their respective counsel of record, hereby stipulate that this action

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be stayed pending resolution of criminal proceedings against defendant Lee F. Gaines, II, and request

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that the court order the case stayed on the basis of the following circumstances:

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1.

On August 1, 2012, plaintiff filed a complaint against the City of Modesto, the

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Modesto Police Department and Police Officer Lee F. Gaines, II, alleging that on January 5, 2012,

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Officer Gaines unlawfully entered her residence, handcuffed her and sexually assaulted her.

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2.

On September 17, 2012, plaintiff filed a first amended complaint alleging the same

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set of facts and setting forth both state and federal claims against Officer Gaines as well as a Monell

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claim against the City of Modesto and Modesto Police Department.

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3.

On March 15, 2012, Gaines was indicted in the Superior Court of California, County

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of Stanislaus on charges related to the alleged sexual battery of plaintiff. The criminal proceedings

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are in progress and ongoing. The allegations in the criminal indictment arise from and are virtually

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identical to the allegations in plaintiff’s civil complaint filed herein. A trial date in the criminal case

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is likely to be set in the spring of 2013.

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4.

On October 9, 2012, Gaines filed a Motion to Stay Civil Action Pending Resolution

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of Criminal Proceedings (docket document 10), seeking a stay of the civil proceedings given that the

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parallel criminal proceeding clearly implicates Gaines Fifth Amendment rights. In addition, both

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Gaines and the Modesto public entity defendants would be deprived of their opportunity to offer a

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meaningful defense in the civil case should this matter go forward and Gaines continue to preserve

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his right against self incrimination.

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5.

In light of the ongoing criminal proceedings, and the fact that the criminal indictment

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arises out of the identical facts upon which plaintiff bases her civil action, the parties, by and through

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their respective counsel, stipulate that the civil proceedings herein be stayed pending the resolution

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of the criminal proceedings against Gaines. The parties stipulate that the hearing on Gaines’ Motion

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to Stay, presently set for hearing on December 7, 2012 at 9:30 a.m. in Courtroom 10 before

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Magistrate Judge Gary S. Austin be vacated.
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STIPULA TIO N A N D O R D ER TO STA Y C IVIL A CTIO N PEN D IN G R ESO LU TION O F CRIM IN AL PR O C EED IN G S

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6.

The parties further stipulate that the initial mandatory scheduling conference set for

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January 9, 2013 at 9:30 a.m. in Courtroom 10 before Magistrate Judge Gary S. Austin be vacated and

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reset as soon as practicable after the parties notify the court that the criminal proceedings have been

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resolved.

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Dated: November 7, 2012

Law Offices of Jacob J. Rivas

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By:

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/s/ Jacob J. Rivas
Jacob J. Rivas
Attorney for Plaintiff Jane Doe

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Dated: November 7, 2012

Office of the City Attorney, City of Modesto

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By:

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/s/ James F. Wilson
James F. Wilson
Attorney for Defendants City of Modesto
and Modesto Police Department

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Dated: November 7, 2012

JONES & DYER

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By:

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/s/ Mark A. Jones
Mark A. Jones
Attorney for Defendant Lee F. Gaines, II.

ORDER

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Based upon the stipulation of the parties, and good cause appearing therefor, all proceedings

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in this matter are hereby stayed pending resolution of the County of Stanislaus’ criminal proceedings

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against defendant Lee F. Gaines, II. The hearing on Defendant Gaines’ Motion to Stay, presently set

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for December 7, 2012 at 9:30 a.m. in Courtroom 10 before Magistrate Judge Gary S. Austin is

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vacated. The initial mandatory scheduling conference, set for January 9, 2013 at 9:30 a.m. in

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Courtroom 10 before Magistrate Judge Gary S. Austin is also vacated. The parties shall promptly

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STIPULA TIO N A N D O R D ER TO STA Y C IVIL A CTIO N PEN D IN G R ESO LU TION O F CRIM IN AL PR O C EED IN G S

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notify the court when the criminal proceedings have been resolved and the court will at that time

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reschedule the initial scheduling conference as soon as practicable based upon the court’s calendar.

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In addition, this Court ORDERS the parties, no later than April 18, 2013 and every 90 days

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thereafter, to file joint status reports to address the need to continue stay of this action.

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IT IS SO ORDERED.
Dated:
66h44d

November 7, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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STIPULA TIO N A N D O R D ER TO STA Y C IVIL A CTIO N PEN D IN G R ESO LU TION O F CRIM IN AL PR O C EED IN G S

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