Timothy John Kennedy v. Mark Finely, et al

Filing 70

ORDER granting 64 Motion to Stay Discovery as to Defendants Mark A. Finley, Sheriff John Wesley Anderson, and El Paso County Sheriffs Offices, pending conclusion of the underlying state appeal. The County Defendants shall file a status report no later than five days after the conclusion of the state appeal to advise whether the case should be set for further scheduling, by Judge Robert E. Blackburn on 2/9/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–00967–REB–KMT

TIMOTHY JOHN KENNEDY,
Plaintiff,
v.
MARK A. FINLEY,
ERNEST ROGER PEELE,
SHERIFF JOHN WESLEY ANDERSON,
EL PASO COUNTY SHERIFF’S OFFICE, and
UNITED STATES OF AMERICA,
Defendants.

ORDER

This matter is before the court on Defendants Mark A. Finley, Sheriff John Wesley
Anderson, and El Paso County Sheriff’s Office’s “Motion to Stay of Discovery” (Doc. No. 64,
filed January 24, 2012). Plaintiff filed his response on February 6, 2012. (Doc. No. 69.)
This action arises from Plaintiff’s claims of malicious prosecution related to the March
11, 1991 murders of Jennifer Carpenter, a minor, and her boyfriend, Steve Staskieweicz.
Plaintiff was convicted of these murders on August 8, 1997 in 95CR4541. On April 9, 2009,
following a hearing pursuant to Colo. R. Cr. P. 35(c), 4th Judicial District Judge Kane granted
Plaintiff a new trial. Plaintiff then commenced this malicious prosecution action. The 4th
Judicial District Attorney’s Office appealed the ruling of Judge Kane. This appeal has been

pending since 2009 in 09CA1172. Briefing on the appeal is proceeding. Defendants Finley,
Anderson, and El Paso County Sheriff’s Office move to stay this case pending the underlying
state appeal.1
Under Tenth Circuit case law, a § 1983 malicious prosecution claim includes the
following elements: (i) the defendant caused the plaintiff’s continued confinement or
prosecution; (ii) the original action terminated in favor of the plaintiff; (iii) no probable cause
supported the original arrest, continued confinement, or prosecution; (iv) the defendant acted
with malice; and (v) the plaintiff sustained damages. See Wilkins v. DeReyes, 528 F.3d at 799.
Defendants argue that the termination of the prior criminal proceeding in favor of the accused is
an essential element of the claim, see Heck v. Humphrey, 512 U.S. 477, 484 (1994), and that if
the Colorado Court of Appeals reverses Judge Kane’s Order granting a new trial, an essential
element for a malicious prosecution claim–the original action terminated in favor of the
plaintiff–will no longer exist, and that no basis would exist for Plaintiff’s malicious prosecution
claims against the County Defendants.
Defendants also argue that since Plaintiff’s state criminal proceedings remain ongoing at
the Colorado Court of Appeals in Case No. 09CA1172, a stay of this action is appropriate under
the Younger and Deakins’ Doctrines. Younger v. Harris, 401 U.S. 37 (1971); and Deakins v.
Monaghan, 484 U.S. 193, 202-203 (1988). The 10th Circuit has held,

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The FBI Defendants currently are subject to a stay of discovery pending ruling on their
Motion to Dismss. (See Doc. No. 60.)
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Under the Younger abstention doctrine, federal courts should not “interfere with
state court proceedings by granting equitable relief - such as injunctions of
important state proceedings or declaratory judgments regarding constitutional
issues in those proceedings -” when a state forum provides an adequate avenue for
relief. Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999). “Younger
abstention is non-discretionary;” the district court must abstain once the
conditions are met, “absent extraordinary circumstances.” Amanatullah, 187 F.3d
at 1163. As this court stated in Amanatullah:
A federal court must abstain from exercising jurisdiction when: (1) there is an
ongoing state criminal, civil, or administrative proceeding, (2) the state court
provides an adequate forum to hear the claims raised in the federal complaint, and
(3) the state proceedings "involve important state interests, matters which
traditionally look to state law for their resolution or implicate separately
articulated state policies.
Weitzel v. Division of Occupational & Prof’l Licensing, 240 F.3d 871, 875 (2001)(internal
citations omitted).
Defendants argue that all three Younger elements are met in the present case: (1)
Plaintiff’s underlying state criminal case (95CR4541) is still pending in 09CV1172; (2) the 4th
Judicial District Attorney’s Office is appealing the Court’s vacating the Plaintiff’s conviction
and therefore the state court provides an adequate forum; and (3) the appeal involves important
state interests of prosecuting Plaintiff for criminal state violations.
Defendants also argue that Deakins further supports County Defendants’ position for the
stay:
Even if the Younger doctrine required abstention here, the District Court had no
discretion to dismiss rather than to stay respondents’ claims for monetary relief
that cannot be redressed in the state proceeding. The circuit rule requiring a stay
in such circumstances is sound since it allows the parallel state proceeding to go
forward without interference from its federal sibling, while enforcing the federal
courts’ duty to exercise their jurisdiction.

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Deakins v. Monaghan, 484 U.S. 193, 201 (1988).
Finally, Defendants argue that a stay of discovery in this case is appropriate because (1)
the plaintiff will suffer no prejudice from a delay of discovery as Plaintiff’s underlying criminal
matter is currently under appeal at the Colorado Court of Appeals; (2) this case involves
voluminous documents, videotapes and transcripts; (3) the discovery process in this case is time
consuming and more extensive than most malicious prosecution cases; (4) to engage in the
discovery stage of this case is proving expensive, and will continue to be more expensive for all
parties; and (5) a stay of discovery proceedings may also serve the interests of judicial economy.
The court agrees with the defendants. Plaintiff’s counsel does not oppose the stay;
however Plaintiff does oppose the stay. (See Doc. No. 69.) While the court recognizes the
Plaintiff’s interest in proceeding in this matter, his interest is not outweighed by the burden to
Defendants of proceeding while the underlying criminal matter is under appeal. Balancing the
factors addressed by Defendants, and also considering the interests of non-parties and the public
interest in general, the court finds that a stay of discovery and other deadlines is appropriate in
this case.
Therefore, it is
ORDERED that “Motion to Stay of Discovery” (Doc. No. 64) is GRANTED. This
matter is STAYED as to Defendants Mark A. Finley, Sheriff John Wesley Anderson, and El
Paso County Sheriff’s Office’s, pending conclusion of the underlying state appeal. The County
Defendants shall file a status report no later than five days after the conclusion of the state appeal
to advise whether the case should be set for further scheduling.
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Dated this 9th day of February, 2012.

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