Banks v. Brnicky et al

Filing 10

OPINION AND ORDER this action is STAYED pending the resolution of United States v. Banks, 2:19-CR-128-JTM-JPK (N.D. Ind. filed Oct. 7, 2019). Plaintiff is ORDERED to file a motion to lift the stay within 30 days after judgment is entered in the crimi nal case. He is CAUTIONED that if he does not do so, the stay will be converted to a dismissal without prejudice. The clerk is DIRECTED to STATISTICALLY CLOSE this case. Signed by Judge Joseph S Van Bokkelen on 1/11/22. (Copy mailed to pro se party)(mlc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
HERMAN L. BANKS,
Plaintiff,
v.
BROCK BRNICKY, et al.,
Defendants.

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CAUSE NO.: 2:21-CV-302-JVB-JEM

OPINION AND ORDER
Herman L. Banks, a prisoner proceeding without a lawyer, filed a complaint under 42
U.S.C. § 1983. (ECF 1.) Under 28 U.S.C. § 1915A, the court must review the complaint and
dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.
§ 1915A. Because Mr. Banks is proceeding without counsel, the court must give his allegations
liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Mr. Banks alleges that on September 29, 2019, he was sitting in his car outside the Buzz
Box Club in Gary, Indiana. Someone called the police to report that there was a man who had been
sitting in a vehicle outside the club, and the caller “didn’t know if they were injured or what was
wrong with them.” (ECF 1 at 3.) Two Gary police officers responded to the dispatch call, and
according to Mr. Banks, they blocked his vehicle, opened his car door without his permission, and
prevented him from leaving even though he assured them he was fine. Further discussions with
police led to a search of his vehicle, and the search led to the discovery of a “firearm magazine, a
firearm, a firearm holster, and an additional firearm magazine.” (Id. at 4.) He claims that the police
violated his Fourth and Fourteenth Amendment rights during this incident by exceeding the scope
of a Terry stop, unlawfully seizing him and searching his vehicle, “fabricating a story to create

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probable cause,” and arresting him without probable cause. He seeks compensatory and punitive
damages against the police officers involved and their employer. (Id. at 16.)
Public records reflect that as a result of his arrest by Gary police on September 29, 2019,
Mr. Banks is presently under indictment in this District for unlawful possession of a weapon and
ammunition as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). 1 See United
States v. Banks, 2:19-CR-128-JTM-JPK (N.D. Ind. filed Oct. 7, 2019). In the criminal case, he is
litigating many of the same issues he raises in his civil lawsuit regarding the propriety of the police
officers’ actions, including whether they exceeded the scope of a Terry stop, whether they had
probable cause to search his vehicle, and whether they had probable cause to arrest him. Id., ECF
69, 75. The charge against him remains pending, and a jury trial is currently scheduled for April
18, 2022. Id., ECF 91.
As outlined above, Mr. Banks is trying to litigate the same issues in two forums at the same
time. 2 Permitting such “parallel civil litigation” runs counter to “core principles of . . . comity,
consistency, and judicial economy.” McDonough v. Smith, 139 S. Ct. 2149, 2158 (2019). Allowing
the civil case to proceed while the criminal case is ongoing also “opens up another can of worms,
because civil discovery is much broader than criminal discovery—that is, criminal defendants can
learn a lot more about the prosecution’s case through civil discovery than they otherwise would be
able to in the criminal case alone.” Commodity Futures Trading Comm’n v. Nowak, No. 19-CV6163, 2020 WL 3050225, at *2 (N.D. Ill. June 8, 2020). As another court has recognized, “The

The court is permitted to take judicial notice of public records at the pleading stage. See FED. R. EVID.
201; Tobey v. Chibucos, 890 F.3d 634, 647 (7th Cir. 2018).
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Notably, Mr. Banks appears to be making conflicting allegations in the criminal and civil cases. In the
civil case, he asserts that he was not intoxicated and that the police had no reason to believe that he was or to prevent
him from driving away after he assured them he was fine; in the criminal case, by contrast, he claims that he was
still so intoxicated during an interrogation nine hours after his arrest that statements he made were not voluntary. See
Banks, 2:19-CR-128-JTM-JPK, ECF 69 at 7-8.

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distinction between the two discovery protocols is not idle: criminal discovery is narrower because
of concerns that criminal defendants may use this information to impede investigations into them,
tamper with witnesses, or craft more airtight perjured testimony.” Id.
Mr. Banks’s claim that the officers fabricated evidence to use against him poses particular
problems. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that “in order to
recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such a determination,
or called into question by a federal court’s issuance of a writ of habeas corpus.” Thus, a claim
alleging fabricated evidence or other forms of wrongful prosecution cannot be brought while
criminal proceedings are ongoing, and instead accrues only when “the criminal proceeding has
ended in the defendant’s favor, or a resulting conviction has been invalidated within the meaning
of Heck.” McDonough, 139 S. Ct. at 2158.
The Supreme Court has directed that “[i]f a plaintiff files a [civil] claim before he has been
convicted (or files any other claim related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of the district court, and in accord with common
practice, to stay the civil action until the criminal case . . . is ended.” 3 Wallace v. Kato, 549 U.S.
384, 393-94 (2007). “If the plaintiff is ultimately convicted, and if the stayed civil suit would

The Seventh Circuit has instructed district courts to apply Younger abstention where a civil rights lawsuit
overlaps with a pending criminal case. See Gakuba v. O’Brien, 711 F.3d 751, 753 (7th Cir. 2013). However, the
Younger doctrine applies to federal interference with ongoing state proceedings, whereas Mr. Banks’s criminal case
is pending in federal court.
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impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed,
absent some other bar to suit.” Id. at 394.
That is the course the court will pursue here. This case will be stayed until such time as the
pending criminal case is resolved. If Mr. Banks wishes to proceed with this civil lawsuit, he must
move to lift the stay within 30 days after judgment is entered in the criminal case. Depending on
the outcome of the criminal case, the court will determine at that time whether his claims in this
civil lawsuit may proceed. See Wallace, 549 U.S. at 394.
For these reasons, this action is STAYED pending the resolution of United States v. Banks,
2:19-CR-128-JTM-JPK (N.D. Ind. filed Oct. 7, 2019). Plaintiff is ORDERED to file a motion to
lift the stay within 30 days after judgment is entered in the criminal case. He is CAUTIONED that
if he does not do so, the stay will be converted to a dismissal without prejudice. The clerk is
DIRECTED to STATISTICALLY CLOSE this case.
SO ORDERED on January 11, 2022.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT

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