Tompkins-Holmes v. Gualtieri et al

Filing 25

ORDER: Defendant Deputy Timothy Virden's Motion to Stay (Doc. # 13 ) is denied. Defendant Sheriff Robert Gualtieri's Motion to Stay or Bifurcate (Doc. # 17 ) is denied. The parties are directed to attend a hearing before the Honorable Anthony E. Porcelli, United States Magistrate Judge, to be scheduled by Judge Porcelli via separate notice, during which the parties may craft a discovery plan in light of the concerns raised by Deputy Virden's pending criminal charges. Signed by Judge Virginia M. Hernandez Covington on 2/16/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DYLAN TOMPKINS-HOLMES,
Plaintiff,

v.

Case No. 8:17-cv-52-T-33AEP

ROBERT GUALTIERI, in his
Capacity as Sheriff of Pinellas
County, Florida, and TIMOTHY
VIRDEN, individually,
Defendants.
______________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendants Deputy Timothy Virden’s Motion to Stay (Doc. #
13), filed on January 18, 2017, and Sheriff Robert Gualtieri’s
Motion to Stay or Bifurcate (Doc. # 17), filed on January 31,
2017.

Plaintiff

Dylan

Tompkins-Holmes

filed

responses

on

February 1 and 14, 2017. (Doc. ## 19, 24). For the reasons
that follow, the Motions are denied.
I.

Background
Tompkins-Holmes

alleges

that

Deputy

Virden

used

excessive force against him on December 30, 2015, during a
traffic stop in which Tompkins-Holmes was a passenger of the
vehicle stopped by deputies. (Doc. # 2). During the traffic

1

stop, Deputy Virden ordered Tompkins-Holmes from the vehicle,
threatened him with a Taser, and shot Tompkins-Holmes twice
while

Tompkins-Holmes’s

hands

were

handcuffed

behind

his

back.

Following the shooting, on January 28, 2016, the State

Attorney charged Deputy Virden with attempted manslaughter.
(Id. at ¶ 30). The criminal proceedings are ongoing.
Tompkins-Holmes filed this action in state court on
December 8, 2016, bringing an excessive force claim under 42
U.S.C. § 1983 against Deputy Virden, § 1983 claims against
Sheriff Gualtieri in his official capacity for maintaining a
custom

or

training

practice

deputies,

of

excessive

force

and

and

vicarious

battery

inadequately

and

negligence

claims against Sheriff Gualtieri in his official capacity.
(Doc. # 2). Defendants removed the case to this Court on
January 6, 2017. (Doc. # 1).
On January 18, 2017, Deputy Virden filed his Motion to
Stay, requesting a stay because he would have to invoke his
Fifth Amendment privilege against self-incrimination in this
civil case to prevent incriminating himself in the criminal
proceedings, thereby hampering his defense in the civil case.
(Doc. # 13). Soon thereafter, Sheriff Gualtieri filed his
Motion to Stay or Bifurcate, requesting that the case be
stayed for the same reason or alternatively bifurcated so

2

that discovery regarding the claims against the Sheriff would
not proceed until the claims against Deputy Virden have been
resolved. (Doc. # 17). Tompkins-Holmes filed responses in
opposition to both Motions. (Doc. ## 19, 24). The Motions are
ripe for review.
II.

Discussion
A.

Stay

“A court must stay a civil proceeding pending resolution
of

a

related

criminal

prosecution

only

when

‘special

circumstances’ so require in the ‘interest of justice.’”
United States v. Lot 5, Fox Grove, Alachua Cty., Fla., 23
F.3d 359, 364 (11th Cir. 1994)(citing United States v. Kordel,
397 U.S. 1, 12–13 & n.27 (1970)). “The [F]ifth [A]mendment
privilege against self-incrimination permits a person ‘not to
answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate him in the future criminal proceedings.’” Erwin
v. Price, 778 F.2d 668, 669 (11th Cir. 1985)(quoting Lefkowitz
v. Turley, 414 U.S. 70, 77 (1973)).
“However, the blanket assertion of the privilege against
self-incrimination is an inadequate basis for the issuance of
a stay.” S.E.C. v. Wright, 261 F. App’x 259, 262–63 (11th
Cir.

2008).

To

“trigger

[the

3

exception

for

‘special

circumstance’],

the

invocation

of

the

[Fifth

Amendment]

privilege must result in an adverse judgment, not merely the
loss of ‘[the] most effective defense.’ Stated plainly, the
rule applies when the invocation of the privilege would result
in ‘automatic entry of summary judgment.’” United States v.
Premises Located at Route 13, 946 F.2d 749, 756 (11th Cir.
1991).
In determining whether special circumstances exist, the
Court looks to:
“(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.”
Investments v. Rothstein, No. 10-60786-Civ, 2011 WL 2530945,
at *1 (S.D. Fla. June 24, 2011)(quoting Yeomans v. Forster &
Howell, Inc., No. 09-00488, 2009 WL 2960387, at *1 (M.D. Ala.
Sept. 10, 2009); see also Whitaker v. Miami-Dade Cty., No.
13-24450-CIV-LENARD/GOODMAN, 2014 WL 12513590, at *2-5 (S.D.
Fla. Apr. 23, 2014)(declining to stay § 1983 case pending
criminal investigation of officers after analyzing the six
factors).

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Here, Deputy Virden has been charged with attempted
manslaughter, and the criminal proceedings have been underway
for over a year, which weighs in favor of a stay. (Doc. # 171). Also, the Court finds that there is a significant overlap
between Tompkins-Holmes’s civil claims and the criminal case
against Deputy Virden, as both arise out of the shooting and
call into question the propriety of Deputy Virden’s use of
force. See Love v. City of Lanett, No. 3:09-cv-622-MEF, 2009
WL 2525371, at *2 (M.D. Ala. Aug. 17, 2009)(“‘[T]he similarity
of issues in the underlying civil and criminal actions is
considered the most important threshold issue in determining
whether to grant a stay.’” (quoting Dominguez v. Hartford
Fin. Servs., 530 F. Supp. 2d 902, 906-07 (S.D. Tex. 2008))).
Nevertheless, the factual overlap between the cases does
not mean that there is a significant overlap in the legal
analysis that will be used to resolve the criminal charge and
civil

claim.

As

Tompkins-Holmes

emphasizes,

the

§

1983

excessive force claim against Deputy Virden will be analyzed
from

the

perspective

of

a

reasonable

officer

in

Deputy

Virden’s situation — an objective standard. (Doc. # 19 at 4);
see also Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.
2008)(“In an excessive force case arising out of an arrest,
whether a constitutional violation occurred is governed by

5

the Fourth Amendment’s ‘objective reasonableness’ standard.”
(citations

omitted)).

Thus,

determining

Deputy

Virden’s

subjective intent when he shot Tompkins-Holmes, which will be
important in the criminal case, will be unnecessary to resolve
the § 1983 claim. So, deposition testimony from Deputy Virden
regarding his intentions and mental state during the incident
is also not required for Deputy Virden’s defense. The Court
finds that this factor only slightly weighs in favor of a
stay.
To

be

sure,

Deputy

Virden

would

be

personally

disadvantaged by proceeding in the civil action because he
would be unable to engage fully in discovery. Because the
criminal case is active, Deputy Virden indicates in his Motion
that he will invoke his Fifth Amendment right against selfincrimination during discovery in the civil case to prevent
those statements from being used against him in the criminal
proceedings. (Doc. # 13 at 2-3). Still, Deputy Virden’s
invocation of his Fifth Amendment rights will not necessitate
an adverse judgment, as his actions will be judged from the
perspective of a reasonable officer and there are other
witnesses and an audio recording of the shooting available.
(Doc. # 19 at 4-5); see Mitchell v. Hunt, No. 8:15-cv-2603T-23TGW,

2016

WL

7396670,

at

6

*1

(M.D.

Fla.

Feb.

10,

2016)(denying motion to stay in civil case with parallel
criminal proceedings where “the motion fail[ed] to explain
why the defendants cannot rely on other testimony or evidence”
if they invoked their privilege against self-incrimination).
Additionally,

Tompkins-Holmes

expresses

willingness

to

compromise on how to proceed with discovery, in order to
accommodate Deputy Virden’s concerns if the case is not
stayed. (Doc. # 19 at 2; Doc. # 24 at 2). Thus, this factor
is neutral or only weighs slightly in favor of a stay.
And, while Deputy Virden would be prejudiced if the case
is not stayed, Tompkins-Holmes would be prejudiced by a stay
of the case. Tompkins-Holmes is concerned about the loss of
evidence and fading memories of witnesses. (Doc. # 24 at 67); see Whitaker, 2014 WL 12513590, at *3 (“Plaintiffs’
concerns

about

witnesses’

disappearance

of

particularly

where,

fifteen

months

fading

evidence

are

as

the

ago.”).

here,

memories
legitimate

incident

Additionally,

“the

and

the

concerns,

occurred
Court

over
takes

seriously [Tompkins-Holmes’s] right to proceed with [his]
claims.” Id. Thus, this factor weighs heavily against a stay.
Regarding the interest of the courts and the public
interest, Sheriff Gualtieri argues that both interests weigh
in favor of a stay because “civil discovery in this case [will

7

have] the effect of compromising the prosecution of the
criminal

case”

proliferating

and

squander

litigation.

(Doc.

judicial
#

17

resources

at

8-9).

with

Sheriff

Gualtieri asserts that resolution of the criminal case would
clarify the issues remaining in this case — about the legality
of Deputy Virden’s use of force — and so a stay would promote
judicial economy. (Id. at 8). Also, Sheriff Gualtieri insists
that Tompkins-Holmes may seek discovery of information from
Deputy Virden, such as psychological and medical records,
that the state would not be able to obtain, thereby affecting
the integrity of the criminal case. (Id.); cf. Eastwood
Enters., LLC v. Farha, No. 8:07-cv-1940-T-33EAJ, 2010 WL
2836719, at *2 (M.D. Fla. July 19, 2010)(staying civil case
for 150 days at request of the intervener United States to
protect

the

integrity

of

a

pending

related

criminal

proceeding that could be threatened by “the acknowledged use
of civil discovery to combat the criminal investigation and
future prosecution”).
But, Tompkins-Holmes correctly notes that the special
circumstance warranting a stay in the case cited by Sheriff
Gualtieri, Eastwood Enterprises, was the government’s thirdparty request in a civil case between private parties that
discovery be stayed to prevent the premature disclosure of

8

government witnesses and information from its criminal case
— a circumstance not present here. (Doc. # 24 at 5); Eastwood
Enters., LLC, 2010 WL 2836719, at *2. Rather, the concern
here is that Tompkins-Holmes may through civil discovery
obtain evidence that the government would not have been able
to acquire in its criminal case against Deputy Virden. Thus,
the government’s efficient prosecution of criminal cases,
which is a legitimate public interest, is not significantly
affected. And, the Court agrees that concerns over civil
discovery potentially compromising Deputy Virden’s defense in
the criminal case are better addressed by a tailored discovery
plan than by a stay.
Additionally, both the public and the Court have an
interest in the expeditious resolution of civil claims for
constitutional

violations,

which

would

not

be

served

by

staying the case until whenever the criminal proceedings
resolve. Cf. Pellegrino v. Wengert, 147 F. Supp. 3d 1379,
1383 (S.D. Fla. 2015)(“Given the tentative nature of the
criminal investigation, it is against the public interest to
grant a stay that could last indefinitely.”). Therefore, the
Court finds that these two factors also weigh against staying
the case.

9

Weighing all the factors, the Court determines that the
circumstances of this case do not warrant a stay. As discussed
further below, the parties will have an opportunity to craft
a discovery plan suitable to all.
B.

Bifurcation

Sheriff Gualtieri requests that, if the Court declines
to stay the case, that the claims against the Sheriff be
bifurcated from the claim against Deputy Virden and stayed
pending resolution of that claim. (Doc. # 17 at 9).
Rule 42(b) of the Federal Rules of Civil Procedure
permits the Court to separate or bifurcate issues or claims
“[f]or convenience, to avoid prejudice, or to expedite and
economize”

the

proceedings,

and

the

resolution

of

those

proceedings, before it. Treece v. Hochstetler, 213 F.3d 360,
365 (7th Cir. 2000). In deciding whether to bifurcate, the
Court

should

consider

the

convenience

of

bifurcation,

judicial economy, and the risk of prejudice. See Alexander v.
Fulton

Cty.,

207

F.3d

1303,

1324-25

(11th

Cir.

2000),

overruled on other grounds, Manders v. Lee, 338 F.3d 1304
(llth Cir. 2003). The decision to bifurcate is committed to
the Court’s sound discretion. Harrington v. Cleburne Cty. Bd.
of Educ., 251 F.3d 935, 938 (11th Cir. 2001)(noting that Rule
42(b) “confers broad discretion on the district court in this

10

area,

permitting

bifurcation

merely

‘in

furtherance

of

convenience.’ This is not a high standard . . .”).
As the claims against Sheriff Gualtieri include Monell
claims, as well as vicarious battery and negligence claims,
Sheriff

Gualtieri

asserts

that

bifurcation

would

be

beneficial in this case. Discovery regarding the Sheriff’s
customs

and

practices

will

be

more

wide-ranging

than

discovery regarding the shooting of Tompkins-Holmes alone,
and so Sheriff Gualtieri feels it would be more efficient to
resolve the individual claim against Deputy Virden before
litigating the claims against Sheriff Gualtieri. (Doc. # 17
at 10-11); see Foltz v. City of Largo, No. 8:10-cv-759-T24EAJ, 2011 WL 1690010, at *2 (M.D. Fla. May 3, 2011)(noting
that “[c]ourts have found that bifurcation is warranted in
order to sever a Monell claim against a municipality from
claims against individual police officers” and that, if the
jury finds in favor of the officer on the individual § 1983
claim, “such a finding would be dispositive of, and preclude,
Plaintiff’s Monell claim” (citations omitted)).
Sheriff Gualtieri also points out the potential for
prejudice to Deputy Virden if the claims against the Sheriff,
which will require evidence of many different wrongful acts,
are tried along with the claim against Deputy Virden. (Doc.

11

# 17 at 10); see Foltz, 2011 WL 1690010, at *2 (“In concluding
that

bifurcation

was

warranted,

courts

have

noted

that

severance of the Monell claim eliminates the potential unfair
prejudice to an officer that can occur from the plaintiff’s
introduction of an officer’s prior wrongful acts in order to
establish a Monell claim.”).
But, as Tompkins-Holmes notes, while Sheriff Gualtieri
asserts that there is danger of prejudice to Deputy Virden if
the case is not bifurcated, Deputy Virden does not seem to
share that concern — he has not moved to bifurcate the case
nor claimed that he will be prejudiced if bifurcation does
not occur. (Doc. # 24 at 8). Additionally, the battery and
negligence

claims

brought

against

Sheriff

Gualtieri

vicariously are entirely based on Deputy Virden’s actions on
the night of the shooting, unlike the Monell claims. Thus,
Tompkins-Holmes argues that it is more efficient to resolve
these claims at the same time as the excessive force claim
against Deputy Virden. (Id. at 10). Finally, Tompkins-Holmes
states that bifurcation “would create a financial hardship
[for him], by requiring two separate trials over the course
of a year.” (Id. at 9).
Upon consideration of these competing interests, the
Court does not believe that bifurcating the claims against

12

the Sheriff would increase convenience or judicial economy
sufficiently

to

warrant

bifurcation.

Therefore,

Sheriff

Gualtieri’s alternative Motion to Bifurcate is denied.
III. Conclusion
The Court has determined that neither a stay pending the
criminal proceedings against Deputy Virden, nor bifurcation
of the claims against Sheriff Gualtieri, are appropriate.
Therefore, both Motions are denied.
Although

the

Court

denies

both

Motions,

Sheriff

Gualtieri and Deputy Virden raise reasonable concerns about
the best way to handle discovery given the ongoing criminal
proceedings.

Indeed,

Tompkins-Holmes

acknowledges

the

legitimacy of these concerns and indicates his willingness to
craft a discovery plan that takes into account Deputy Virden’s
privilege against self-incrimination. (Doc. # 19 at 2; Doc.
# 24 at 2). Accordingly, the parties are directed to attend
a hearing before the Honorable Anthony E. Porcelli, United
States Magistrate Judge, to be scheduled by Judge Porcelli
via separate notice. At the hearing, the parties should be
prepared to discuss possible solutions to their discovery
concerns.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:

13

(1)

Defendant Deputy Timothy Virden’s Motion to Stay (Doc.
# 13) is DENIED.

(2)

Defendant Sheriff Robert Gualtieri’s Motion to Stay or
Bifurcate (Doc. # 17) is DENIED.

(3)

The parties are directed to attend a hearing before the
Honorable Anthony E. Porcelli, United States Magistrate
Judge, to be scheduled by Judge Porcelli via separate
notice, during which the parties may craft a discovery
plan in light of the concerns raised by Deputy Virden’s
pending criminal charges.
DONE and ORDERED in Chambers in Tampa, Florida, this

16th day of February, 2017.

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