DAVIS v. HOGSETT et al
ENTRY STAYING ACTION PENDING RESOLUTION OF THE CRIMINAL ACTION - Counsel has now appeared for all parties in this action.1 Having achieved service to the extent possible, and consistent with the Entry of September 27, 2016, which granted the defen dants' motion to stay, this action is now STAYED on the docket. This action will not be developed until the murder charges now pending against plaintiff Major P. Davis, II, in the Marion Superior Count titled State of Indiana v. Major Davis, Cau se Number 49G02-1407-MR-034656, are resolved. The plaintiff's objections to this ruling [dkt. 43] are overruled. The parties' are directed to notify this Court when final judgment has been entered in the criminal case within 14 days of the date the criminal judgment is entered. The court will then reopen this action on the docket and direct further proceedings. **SEE ORDER** Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 10/13/2016. (JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MAJOR P. DAVIS, II,
CITY OF INDIANAPOLIS, OFFICER
NICHOLAS GALLICO, ESTATE OF
OFFICER PERRY RENN,
Case No. 1:16-cv-00090-TWP-MPB
ENTRY STAYING ACTION PENDING RESOLUTION OF THE CRIMINAL ACTION
Counsel has now appeared for all parties in this action. 1 Having achieved service to the
extent possible, and consistent with the Entry of September 27, 2016, which granted the
defendants’ motion to stay, this action is now STAYED on the docket. This action will not be
developed until the murder charges now pending against plaintiff Major P. Davis, II, in the Marion
Superior Count titled State of Indiana v. Major Davis, Cause Number 49G02-1407-MR-034656,
are resolved. The plaintiff’s objections to this ruling [dkt. 43] are overruled.
This Court’s prior order suggested that such a stay is warranted under Heck v. Humphrey,
512 U.S. 477 (1994). In Heck, the Supreme Court held that a plaintiff may not recover damages
under 42 U.S.C. § 1983 when a judgment in his favor would necessarily imply the invalidity of a
criminal conviction or sentence that has not been reversed, expunged, invalidated, or otherwise
called into question. See id. at 486–87; Helman v. Duhaime, 742 F.3d 760, 762 (7th Cir. 2014).
The court notes that the entity “Estate of Officer Perry Renn” may not exist for the reasons
explained by counsel in the Notice of Appearance filed October 6, 2016. The Court appreciates
counsel’s efforts in this regard.
Heck “forbids a prisoner in his civil rights case to challenge a finding in his criminal or prisondiscipline case that was essential to the decision in that case; if he insists on doing that, the civil
rights case must be dismissed.” Moore v. Mahone, 2011 WL 2739771, *1 (7th Cir. 2011) (citing
Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003). However, “Heck does not apply absent a
conviction.” Gakuba v. O'Brien, 711 F.3d 751, 753 (7th Cir. 2013) (citing Wallace v. Kato, 549
U.S. 384, 393–94 (2007); and Evans v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010)).
In this case there has been no conviction and the criminal case is ongoing. Instead, the
doctrine at issue is Younger v. Harris, 401 U.S. 37 (1971). Younger holds that federal courts must
abstain from taking jurisdiction over federal constitutional claims that may interfere with ongoing
state proceedings. Gakuba, 711 F.3d at 753. In Wallace v. Kato, 549 U.S. 384 (2007), the Supreme
Court explained, that if 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 or the likelihood of a criminal case is ended.” Id. at 393–94 (citing
Heck, 512 U.S. at 487–488, n. 8, (noting that “abstention may be an appropriate response to the
parallel state-court proceedings”); and Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996).
This action is stayed until the criminal case has ended. This is appropriate because Mr.
Davis’ claims for damages involve constitutional issues that may be litigated during the course of
his criminal case and deciding those issues in federal court could undermine the state court
proceeding. In addition, Mr. Davis’ allegations are in direct contradiction to his pending criminal
charges for the murder of Officer Renn. For example, if Mr. Davis is convicted of shooting and
killing Officer Renn, then the allegation that Mr. Davis was unarmed must be rejected.
Mr. Davis states that even if he is found guilty of murdering Officer Renn his claims are
not barred because everything happened after any committed crime. Dkt. 43 at p. 3. But if this is
true, then his claim of excessive force by Indianapolis Metropolitan Police Officers (shooting at
the plaintiff) cannot succeed because if the plaintiff shot at the officers, then it was reasonable for
the officers to shoot back. Similarly, a claim against the City of Indianapolis for hiring the officers
or failing to train the officers requires the plaintiff to prove that the City’s failure caused the
plaintiff’s injuries and if the plaintiff shot at the officers, he (not the City) is necessarily responsible
for his injuries. Finally, in Indiana the tort of intentional infliction of emotional distress is defined
as occurring when “one who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another.” Williams v. Tharp, 914 N.E.2d 756, 769 (Ind. 2009) (quoting
Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991)). Again, there is no plausible theory of liability
if Mr. Davis shot at Officer Renn and the officers shot back. Under this scenario the harm was
caused by the plaintiff and not by the officers’ outrageous conduct. If the plaintiff can articulate a
theory of his claims based on factual propositions which would not contradict a murder conviction
then the court will reconsider this ruling.
If “the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that
conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other
bar to suit.” Wallace, 594 U.S. at 394 (citing Edwards v. Balisok, 520 U.S. 641, 649 (1997); Heck,
512 U.S., at 487). In addition, staying rather than dismissing this action is to the benefit of the
plaintiff because monetary relief is not available to him in his defense of criminal charges and
because his claims may become time-barred by the time the state prosecution has concluded.
Gakuba, 711 F.3d at 753. In addition, the circumstances at issue occurred on July 5, 2014, at 9:23
p.m. Thus, given Indiana’s 2-year statute of limitation period for actions brought pursuant to 42
U.S.C. § 1983 it is too late for the plaintiff to name a new party to this action and a stay will not
prejudice Mr. Davis in this regard. Finally, if Mr. Davis is acquitted of the murder charge, the stay
will be lifted and he may proceed with this claims in this action.
The parties’ are directed to notify this Court when final judgment has been entered in the
criminal case within 14 days of the date the criminal judgment is entered. The court will then
reopen this action on the docket and direct further proceedings.
IT IS SO ORDERED.
MAJOR P. DAVIS, II
INDIANA STATE PRISON
One Park Row
MICHIGAN CITY, IN 46360
All Electronically Registered Counsel
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