Alexander v. Gilley et al
MEMORANDUM ORDER granting 16 Motion to Stay. IT IS FURTHER ORDERED that 15 Scheduling Order is VACATED. IT IS FURTHER ORDERED that 21 Motion for Extension of Time to Respond to Discovery is DENIED as unnecessary. IT IS FURTHER ORDERED that the parties file a status report every 180 days and a motion to lift the stay as soon as the related criminal proceedings against Plaintiff are resolved. Signed by Magistrate Judge Karen L Hayes on 9/15/16. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MATTHEW EDWARD ALEXANDER
CIVIL ACTION NO. 15-2732
JUDGE ROBERT G. JAMES
GARY GILLEY, ET AL.
MAG. JUDGE KAREN L. HAYES
Before the undersigned Magistrate Judge, on reference from the District Court, are two
motions filed by defendants Sheriff Jay Russell, Gary Gilley, and Miranda Rogers: 1) motion to
stay proceedings pending disposition of plaintiff’s criminal proceedings [doc. # 16]; and 2)
motion for extension of time to respond to discovery [doc. # 21]. The motions are opposed. For
reasons assigned below, the motion to stay is GRANTED, and the motion for extension of time is
DENIED, as moot.1
On November 23, 2015, Matthew Alexander filed the instant pro se complaint for
damages under 42 U.S.C. § 1983 and the Stored Communications Act, 18 U.S.C. § 2702, et seq.,
against defendants Sheriff Jay Russell (incorrectly named as the “Ouachita Parish Sheriff’s
Department”), Gary Gilley, and Miranda Rogers. Plaintiff alleges that defendants violated his
constitutional rights and the Stored Communications Act when they obtained his cell phone
As these motions are not excepted within 28 U.S.C. § 636(b)(1)(A), nor dispositive of
any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure,
this order is issued under the authority thereof, and in accordance with the standing order of this
court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R.
location information from Verizon without a warrant, which information they then used as a
basis for probable cause to obtain an arrest warrant for Alexander on charges of aggravated arson
and two counts of attempted second degree murder. (Compl., Coll. Proc. [doc. # 1 & 1-1]).
Plaintiff seeks damages in the amount of $1,000,000. Id.
On January 15, 2016, the court granted plaintiff’s motion for service by U.S. Marshal.
(Jan. 15, 2016, Order [doc. # 6]). In so doing, the court noted that plaintiff did not have a
reasonable expectation of privacy in his cell phone’s historical location data as required to
support a Fourth Amendment claim. Id.2 Nonetheless, on February 29, 2016, plaintiff filed an
amended complaint in which he distinguished Fifth Circuit case law and essentially re-urged his
§ 1983 Fourth Amendment claim. (1st Amend. Compl. [doc. # 10]).
Defendants filed answers to the original and amended complaints in due course. [doc. #s
7 & 11]. Thereafter, the court set the matter for jury trial on February 13, 2017. (April 29, 2016,
Sched. Order [doc. # 15]).
On August 15, 2016, defendants filed the instant motion to stay proceedings pending
disposition of plaintiff’s related criminal case in state court. In support of their motion,
defendants assert that if the Louisiana Second Circuit Court of Appeal determines in Louisiana v.
Alexander that the cell phone records should not be suppressed, then that would serve to vitiate
See United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014), cert. denied,
, 135 S. Ct. 1548 (2015); see also United States v. Skinner, 690 F.3d 772, 778 (6th Cir.
Although the court further observed that plaintiff stated a potential claim for damages
under the Stored Communications Act, the undersigned did not conclude that plaintiff had a
viable claim under the statute. Id. Rather, because the complaint set forth at least one colorable
claim, the court determined that service was warranted so defendants could appear and test the
sufficiency of plaintiffs’ claims, as appropriate.
plaintiff’s § 1983 action related to those records and vindicate their qualified immunity defense.3
Defendants further argue that if the court does not stay this case, then, at minimum, discovery
should be stayed so the prosecution in Louisiana v. Alexander, is not placed at a disadvantage by
having to tip its hand via discovery in this case that ordinarily the prosecution would not disclose
until the time of trial.
On August 17, 2016, plaintiff filed his opposition to the motion to stay. (Pl. Opp. Memo.
[doc. # 19]). Plaintiff contends that defendants filed the motion for an improper purpose to
thwart his efforts to depose by written questions a Verizon representative.4 He further stated that
he no longer wishes to pursue his § 1983 claim. Finally, plaintiff stated that he was willing to
waive his Fifth Amendment right against self-incrimination in these proceedings.
Defendants did not file a reply brief. Accordingly, the matter is ripe.
A district court is authorized to stay a civil proceeding during the pendency of a parallel
criminal proceeding. United States v. Little Al, 712 F.2d 133, 136 (5th Cir.1983) (citation
omitted). Indeed, it may do so when the interests of justice require such action, even at the
behest of the prosecution. United States v. Kordel, 397 U.S. 1, 12, n27, 90 S.Ct. 763, 770.
Courts typically consider several factors when determining whether a civil case should be stayed
In support of their motion, defendants submitted the declaration of Geary Aycock, an
Assistant District Attorney for the 4th Judicial District, who is prosecuting Alexander on the
criminal charges in state court. (Geary Aycock Declaration; M/Stay, Exh. A). Aycock declared
that the criminal charges against Alexander are interconnected with the factual allegations in the
instant civil action. Id. Furthermore, the criminal matter is stayed at the trial court level until the
Louisiana Second Circuit Court of Appeal resolves a writ pertaining to an evidentiary ruling by
the district court. Id.
Plaintiff has a separate suit pending against Verizon that arises out of the same set of
facts as this case. Alexander v. Verizon Wireless Services, LLC, Civ. Action No. 16-0867 (W.D.
in favor of a criminal case; they include:
(1) the extent to which the issues in the criminal and civil cases overlap; (2) the
status of the case, including whether the defendant has been indicted; (3) the
plaintiff's interest in proceeding expeditiously weighed against the prejudice to the
plaintiff caused by a delay; (4) the private interest of and burden on the defendant;
(5) the interest of the court; and (6) the public interest.
Villani v. Devol, Civ. Action No. 15-0852, 2016 WL 1383498, at *2 (M.D. La. Apr. 7, 2016)
However, the similarity of issues between the civil and criminal actions is considered the most
important threshold issue. Id. (citation omitted).
Applying the foregoing considerations here, the court finds that there is overlap between
this case and the criminal case against Alexander. Here, plaintiff is seeking compensation
stemming from the defendant law enforcement officers’s efforts to obtain location data from his
cell phone provider. The officers then used this information as grounds to obtain an arrest
warrant and ultimately an indictment against plaintiff. See Alexander v. Nixon, Civ. Action No.
15-2300 (W.D. La.) (R&R [doc. # 20]). Whether or not defendants transgressed plaintiff’s
constitutional rights in obtaining the data is an issue before the court of appeal in plaintiff’s
Furthermore, if plaintiff ultimately is convicted of the offense(s) in state court, he will not
be entitled to seek compensatory damages for his wrongful arrest and false imprisonment claims
until such time as the conviction has been declared invalid. See Heck v. Humphrey, 512 U.S.477,
114 S.Ct. 2364 (1994). However, because the criminal prosecution remains pending, Heck does
not yet apply. See Wallace v. Kato, 549 U.S. 384 (2007) (Heck rule applies only when there has
been a conviction or sentence that has not been invalidated, not to pending criminal charges).
Nevertheless, federal courts are authorized to stay civil rights claims attacking the legality of a
detainee’s arrest, prosecution, and/or detention until such time as the allegedly improper state
prosecution has been concluded. Id. “If a plaintiff files a false arrest 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 . . . to stay the civil action
until the criminal case . . . is ended.” Id.5
The court observes that plaintiff’s criminal case is presently stayed, pending the outcome
of the writ taken to the court of appeal. However, plaintiff has taken steps to expedite a trial
setting in his criminal case as soon as the matter is returned from the court of appeal. See Pl.
Opp. Memo., pg. 1. There is every reason to expect that the state trial court will endeavor to
accommodate plaintiff’s request for a speedy trial.
The court appreciates plaintiff’s interest in proceeding to trial with his civil case.
However, plaintiff will not suffer material prejudice if this case is stayed until after his criminal
case is resolved. Plaintiff emphasizes that he seeks nothing more than justice. However, justice
also must be permitted to run its course. While plaintiff may be willing to waive his right against
self-incrimination in order to proceed with this case, the prosecution in his criminal case, which
is aligned with the defendant law enforcement officers in this case, has its own interest in not
having to disclose evidence and trial strategy prematurely. In this vein, the Fifth Circuit has
[a] litigant should not be allowed to make use of the liberal discovery procedures
applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery
and thereby obtain documents he would not otherwise be entitled to for use in his
As stated earlier, plaintiff indicated that he no longer is interested in pursuing his §
1983 claim. Nonetheless, he has not dismissed his § 1983 claim; it remains one of his claims for
relief in this case. Even if plaintiff were to dismiss his § 1983 claim, that would not impact the
court’s resolution of the instant motion. The Stored Communications Act figured prominently in
the state trial court’s decision to suppress plaintiff’s location information. See April 30, 2015,
Ruling on M/Suppress; Amend. Compl., Exh. [doc. # 10-2].
criminal suit. Judicial discretion and procedural flexibility should be utilized to
harmonize the conflicting rules and to prevent the rules and policies applicable to
one suit from doing violence to those pertaining to the other.
Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962).
The courts also enjoy interests in judicial economy and expediency. Doe v. Morris, Civ.
Action No. 11-1532, 2012 WL 359315, at *2 (E.D. La. Feb. 2, 2012) (citation omitted). Thus,
while this court is obliged to move its docket, the outcome of the criminal case may streamline
some of the issues in this matter, thereby reducing the overall length of time and resources
required to resolve this civil case. In other words, a stay likely will promote judicial economy
Finally, while the public has an interest in the timely resolution of civil rights cases, Doe,
supra, “the public’s interest in the integrity of the criminal case is entitled to precedence over the
civil litigant.” Whitney Nat. Bank v. Air Ambulance ex rel. B & C Flight Mgmt., Inc., Civ. Action
No. 04-2220, 2007 WL 1468417, at *4 (S.D. Tex. May 18, 2007).
In sum, the court finds that defendants have established that this matter should be stayed
until plaintiff’s related criminal proceedings are resolved.
For the above-assigned reasons,
IT IS ORDERED that defendants’ motion to stay proceedings pending disposition of
plaintiff’s criminal proceedings [doc. # 16] is GRANTED.
IT IS FURTHER ORDERED that the April 29, 2016, scheduling order [doc. # 15] is
IT IS FURTHER ORDERED that, in light of the stay, defendants’ motion for extension
of time to respond to discovery [doc. # 21] is DENIED, as unnecessary.
IT IS FURTHER ORDERED that the parties file a motion to lift the stay as soon as the
related criminal proceedings against Mr. Alexander are resolved. In any event, the parties shall
file a status report with the court every 180 days.
In Chambers, at Monroe, Louisiana, this 15th day of September 2016.
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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