Tompkins-Holmes v. Gualtieri et al
Filing
43
ORDER: Defendant Deputy Timothy Virden's Motion to Reconsider (Doc. # 38 ) is DENIED. Defendant Sheriff Robert Gualtieri's Motion for Reconsideration, or alternatively, to Lift Protection of Defendant Virden from Discovery (Doc. # 39 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 7/19/2017. (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 Reconsider the Court’s Order
on the Motion to Stay dated February 16, 2017 (Doc. # 38),
filed on June 14, 2017, and Sheriff Robert Gualtieri’s Motion
to
Reconsider,
or
alternatively,
to
Lift
Protection
of
Defendant Virden from Discovery (Doc. # 39), filed on June
28, 2017. Tompkins-Holmes filed responses to both motions
(Doc. ## 40, 42), and Deputy Virden responded in opposition
to Sheriff Gualtieri’s Motion, (Doc. # 41). For the reasons
that follow, the Motions are denied.
1
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 in the
vehicle stopped by deputies. (Doc. # 2). During the traffic
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
2
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. (Doc. # 17). Tompkins-Holmes
responded to both motions. (Doc. ## 19, 24).
On February 16, 2017, the Court denied the motions and
noted “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. # 25 at 6). Instead, that
Order directed the parties to attend a hearing before the
Honorable
Anthony
E.
Porcelli,
United
States
Magistrate
Judge, to “craft a discovery plan that takes into account
Deputy Virden’s privilege against self-incrimination.” (Id.
at 13).
After holding a discovery conference with the parties,
Judge
Porcelli
entered
a
discovery
order,
stating
“all
discovery to be served upon [Deputy] Virden shall not commence
until August 18, 2017,” but allowing “all other discovery
[to] commence forthwith.” (Doc. # 35 at 1). Furthermore, Judge
Porcelli
advised:
“Should
any
discovery
disputes
arise
relating to Virden’s Fifth Amendment protections, the parties
3
are directed to first meet and confer, and if unable to
resolve
the
dispute,
then
telephonically
contact
the
undersigned’s chambers to schedule a telephonic hearing to
resolve the dispute.” (Id.).
Subsequently, on June 14, 2017, Tompkins-Holmes filed
the Motion to Reconsider the Order denying the stay. (Doc. #
38). Sheriff Gualtieri then filed his Motion to Reconsider,
or alternatively, to Lift Protection of Defendant Virden from
Discovery. (Doc. # 39). Tompkins-Holmes filed responses to
both motions (Doc. ## 40, 42), and Deputy Virden responded in
opposition to Sheriff Gualtieri’s Motion (Doc. # 41). The
Motions are ripe for review.
II.
Legal Standard
A.
Motion for Reconsideration
Federal Rules of Civil Procedure 59(e) and 60 govern
motions for reconsideration. Ludwig v. Liberty Mutual Fire
Ins. Co., Case No. 8:03-cv-2378-T-17MAP, 2005 WL 1053691, at
*2 (M.D. Fla. Mar. 30, 2005). The time when the party files
the motion determines whether the motion will be evaluated
under Rule 59(e) or Rule 60. Id. A Rule 59(e) motion must be
filed within 28 days after the entry of the judgment. Fed. R.
Civ. P. 59(e). Motions filed after the 28-day period will be
decided under Federal Rule of Civil Procedure 60(b).
4
As stated in Florida College of Osteopathic Medicine,
Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308
(M.D.
Fla.
1998),
“A
motion
for
reconsideration
must
demonstrate why the court should reconsider its past decision
and set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision.” Further, “in
the interests of finality and conservation of scarce judicial
resources, reconsideration is an extraordinary remedy to be
employed sparingly.” Lamar Adver. of Mobile, Inc. v. City of
Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).
Likewise, Rule 60(b), Fed. R. Civ. P., is available to
relieve a party from a final judgment or order for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);
(3) fraud . . . misrepresentation, or misconduct by
the opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied . . . ; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Whether asserted under either Rule 59 or 60, “a motion
for reconsideration is not the proper forum for the party to
5
vent dissatisfaction with the Court’s reasoning.” Ludwig,
2005 WL 1053691, at *4 (internal citation omitted).
B.
Motion to Stay
Proceedings
Pending
Resolution
Of
Criminal
“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
exception
for
‘special
circumstances’], 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
6
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).
If a stay is not granted, “the court may draw adverse
inferences against a party that invokes the Fifth Amendment.”
Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d
1298, 1304 (11th Cir. 2009). Indeed, “[t]he decision to invoke
the Fifth Amendment does not have to be consequence-free.”
Id. Still, the possible negative inference alone would not
result in automatic entry of summary because “[t]he negative
inference, if any, to be drawn from the assertion of the Fifth
Amendment does not substitute for evidence needed to meet the
burden of production.” Avirgan v. Hull, 932 F.2d 1572, 1580
(11th Cir. 1991); see also S.E.C. v. Scherm, 854 F. Supp.
900, 904 (N.D. Ga. 1993)(“This adverse inference, however, is
insufficient by itself to allow summary judgment to be entered
against a party.”). “Rather, a party seeking summary judgment
must establish independently the elements of the claim within
the confines of Federal Rule of Civil Procedure 56.” Scherm,
854 F. Supp. at 904-05 (citing Avirgan, 932 F.2d at 1580).
7
III. Analysis
A.
Reconsideration of Stay Order Denied
Deputy
Virden
and
Sheriff
Gualtieri
insist
reconsideration of the Court’s previous Order is warranted
because new information has been uncovered in discovery. (Doc.
#
38
at
3-4;
Doc.
#
39
at
4).
While
Tompkins-Holmes
represented in his response to the motion to stay that there
would be other witnesses to the shooting as well as an audio
recording,
Deputy
Virden
now
asserts
that
“additional
depositions have been taken and it is clear now that there
were no witnesses to the shooting incident involving Deputy
Virden and [Tompkins-Holmes] other than Deputy Virden and
[Tompkins-Holmes].” (Doc. # 38 at 4).
Yet, while they assert new evidence acquired through
discovery reveals there were no other witnesses, neither
Deputy
Virden
nor
Sheriff
Gualtieri
has
pointed
to
any
specific new discovery. Deputy Virden simply notes that many
depositions have been taken in the criminal case. But, the
Eleventh Circuit has held that “where a party attempts to
introduce previously unsubmitted evidence on a motion to
reconsider, the court should not grant the motion absent some
showing
that
the
evidence
was
8
not
available
during
the
pendency of the motion.” Mays v. U.S. Postal Serv., 122 F.3d
43, 46 (11th Cir. 1997).
As Tompkins-Holmes points out, of the thirty depositions
taken in the criminal case, only four were taken after the
Court entered its Order denying the motion to stay. (Doc. #
40 at 5; Doc. # 40-1). Indeed, according to Tompkins-Holmes,
the
depositions
taken
before
the
Court’s
previous
Order
“include all of the Sheriff’s deputies who were at the scene
on the night of the shooting, the driver of the vehicle in
which Tompkins-Holmes was a passenger, and the lead Internal
Affairs
investigators
for
the
Pinellas
County
Sheriff’s
Office.” (Doc. # 40 at 6).
Deputy Virden has not stated which depositions led to
the realization that there were no other witnesses to the
shooting
or
the
dates of those
depositions, nor
has he
provided portions of those depositions for the Court’s review.
And, for depositions that may have been taken before entry of
the Order denying the stay, Deputy Virden has not explained
why he could not have addressed those depositions in his
original
contention
motion
to
that
new
stay.
Therefore,
evidence
unpersuasive.
9
now
Deputy
warrants
a
Virden’s
stay
is
Sheriff Gualtieri’s similar assertions, which parrot
Deputy Virden’s allegations of new but unspecified deposition
testimony,
are
equally
unpersuasive.
As
to
Sheriff
Gualtieri’s discussion of the audio recording, he is incorrect
that the audio recording constitutes new evidence warranting
reconsideration of the Court’s Order. From the beginning of
this action the audio recording has been discussed — the
Complaint describes the audio recording’s contents in detail.
(Doc. # 2 at 11, 17-18). Furthermore, as Tompkins-Holmes
points out, “the depositions taken in the criminal case
discussing the audio recording were taken in the criminal
case well before Gualtieri’s initial motion to stay and the
Court’s Order.” (Doc. # 42 at 5). Thus, Sheriff Gualtieri has
not persuaded the Court that the audio recording presents new
evidence meriting reconsideration.
Additionally,
Tompkins-Holmes
emphasizes
that
the
excessive force claim against Deputy Virden will be analyzed
using the objective standard of a reasonable officer in Deputy
Virden’s position so, “if Virden does not testify in the civil
proceeding, this Court would not be required to enter summary
judgment against him.” (Doc. # 40 at 8). The Court agrees
that this weighs heavily against a stay because, as noted in
the previous Order, “determining Deputy Virden’s subjective
10
intent when he shot Tompkins-Holmes . . . will be unnecessary
to resolve the § 1983 claim.” (Doc. # 25 at 5).
And, although Deputy Virden states there are no witnesses
to
the
shooting
itself,
there
are
numerous
witnesses
—
including the other deputies and Tompkins-Holmes’s companion
— to the events immediately before and after the shooting.
(Doc. # 40 at 7). These events include Deputy Virden and
Tompkins-Holmes’s interaction before the shooting and Deputy
Virden’s behavior and statements to other deputies following
the
shooting.
Deputy
Virden’s
own
statements
during
his
initial interview with the investigators from the Sheriff’s
Office
are
also
available,
allowing
insight
into
Deputy
Virden’s “version of events.” (Id. at 8).
Furthermore, Deputy Virden does not explain why the audio
recording does not provide accurate evidence of how the
shooting occurred. He merely asserts “the audio recording
does not reflect the actions of either Deputy Virden or
Plaintiff Tompkins-Holmes at the time of the shooting.” (Doc.
# 38 at 2-3). But, according to the Compliant, the audio
recording captured the verbal exchange between Deputy Virden
and Tompkins-Holmes, followed by the sound of two gunshots,
Tompkins-Holmes’s scream, then Deputy Virden’s saying “oh
shit,” and speaking to Deputy Randall. (Doc. # 2 at 11, 1711
18). While Deputy Virden would prefer to stay the case until
the criminal matter is concluded so he may testify and avoid
a negative inference drawn from his invocation of the Fifth
Amendment privilege, he is incorrect that the only evidence
concerning how the shooting occurred could be the testimony
of Tompkins-Holmes and himself.
Therefore, Defendants still have not shown that Deputy
Virden’s invocation of his Fifth Amendment privilege would
result
in
an
automatic
adverse
judgment,
which
would
necessitate a stay. See Mitchell v. Hunt, No. 8:15-cv-2603T-23TGW, 2016 WL 7396670, at *1 (M.D. Fla. Feb. 10, 2016)(“The
motion fails to demonstrate that invoking the Fifth Amendment
privilege
will
automatically
result
in
summary
judgment
against the defendants. . . . [A]lthough Mary Catherine Hunt’s
testimony might be the defendants’ ‘most effective defense,’
. . . the motion fails to explain why the defendants cannot
rely on other testimony or evidence.” (citation omitted)).
Even if Deputy Virden’s deposition is ultimately taken and he
invokes his Fifth Amendment privilege, the Court emphasizes
that Tompkins-Holmes still bears the burden of proving his
case and any negative inference that might be drawn against
Deputy Virden will not necessitate an adverse judgment against
him. Scherm, 854 F. Supp. at 904-05.
12
The
Court
understands
Deputy
Virden
and
Sheriff
Gualtieri’s concerns and preference for a stay, but the same
considerations that weighed heavily against a stay before
remain. Deputy Virden and Sheriff Gualtieri have not presented
any specific new evidence to alter that balance.
B.
The Limitations on Discovery Will Remain in Place
Alternatively,
if
a
stay
is
not
granted,
Sheriff
Gualtieri requests that the limitations placed on discovery
for Deputy Virden’s protection be removed. (Doc. # 39 at 7).
According to Sheriff Gualtieri,
the present posture of this case — effectively
staying it as to Virden but no one else — does not
resolve any of the issues [related to discovery],
prejudices [] Sheriff [Gualtieri], and does not
address the ultimate issue that, one way or another,
before this civil case can be concluded at summary
judgment or trial, discovery including deposition
testimony from Virden will have to be had.
(Id.).
Both Tompkins-Holmes and Deputy Virden oppose Sheriff
Gualtieri’s
request
to
lift
the
discovery
restrictions.
Deputy Virden “oppose[s] the lifting of such restrictions as
they are the only restrictions currently in place to guard
against violating Deputy Virden’s Fifth Amendment protections
. . . .” (Doc. # 41 at 3). And Tompkins-Holmes notes Sheriff
Gualtieri
did
not
object
or
13
seek
review
of
the
order
suspending discovery as to Deputy Virden. (Doc. # 42 at 3).
He also emphasizes that “Judge Porcelli was very clear at the
two previous conferences with the parties that he was open
and available to conduct phone conferences on any discovery
issues that the parties may face.” (Id.).
The Court agrees with Deputy Virden and Tompkins-Holmes
and sees no reason to do away with the discovery plan crafted
to protect Deputy Virden’s Fifth Amendment privilege during
the criminal case. Lifting all discovery restrictions is not
necessary for this case to proceed. If Sheriff Gualtieri has
specific issues with the discovery plan, he can raise them
before Judge Porcelli as needed.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Deputy Timothy Virden’s Motion to Reconsider
(Doc. # 38) is DENIED.
(2)
Defendant
Sheriff
Robert
Gualtieri’s
Motion
for
Reconsideration, or alternatively, to Lift Protection of
Defendant Virden from Discovery (Doc. # 39) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
19th day of July, 2017.
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