Newell v. Wayne, County of et al

Filing 23

ORDER DENYING DEFENDANTS' 8 MOTION TO STAY PROCEEDINGS UNTIL RESOLUTION OF CRIMINAL INVESTIGATION AND ORDER DENYING PLAINTIFF'S 15 MOTION FOR SANCTIONS. Signed by District Judge Denise Page Hood. (Ciesla, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RENEE NEWELL,
Plaintiff,
Case No. 12-cv-14928
v.
Hon. Denise Page Hood
COUNTY OF WAYNE, JERIEL D. HEARD,
ERIC SMITH, RAY JOHNSON, ALEX
CHAHINE, IRA TODD, JOHN DOE I, and
JOHN DOE II,
Defendants.
_______________________________________/
ORDER DENYING DEFENDANTS’ MOTION TO STAY PROCEEDINGS
UNTIL RESOLUTION OF CRIMINAL INVESTIGATION
AND
ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS
I.

INTRODUCTION
Now before the Court is Defendants’ Motion to Stay Proceedings Until Resolution of

Pending Criminal Investigation and Plaintiff Renee Newell’s Motion for Sanctions. Briefs have
been filed and a hearing held on the matter. For the reasons stated below, Defendants’ Motion to
Stay is DENIED and Plaintiff’s Motion for Sanctions is DENIED, but an Amended Scheduling
Order will be issued.
II.

BACKGROUND
Plaintiff is the former Director of Jail Compliance for the Wayne County Sheriff’s Office.

[Search Warrant Affidavit, Docket No. 8, Pg ID 52] She was terminated from this position in May
2012. Id
On July 24, 2012, several members and executives of the Wayne County Sheriff’s Office
received an electronic message from Tom Truth. [Search Warrant Affidavit, Docket No. 8, Pg ID

52] The message “reported information of public corruption, obstruction of justice, possession with
intent to distribute cocaine and other incidents of criminal activity conducted by Wayne County
Sheriff’s Office Executive Eric V. Smith.” Id. Attached to the message was a document with the
following statement: “Enclosed you will find an authentic criminal docket of an open federal
criminal case against your Executive Chief of the Wayne County Sheriff’s Office, Eric V. Smith.
In 1995, Smith was caught, arrested, and charged with being in possession of cocaine with intent
to distribute.” Id. The apparent case number is 2:95-mj-80993.1
Upon receipt of the email, Sheriff Benny N. Napoleon directed Deputy Chief Dennis
Richardson and the Deputy Chief Tonya Guy to investigate the allegations. [Search Warrant
Affidavit, Docket No. 8, Pg ID 53] On July 20, 2012, Sergeant William Liczbinski of the Internet
Crime Unit investigated the origin of the email and determined that the email was created and sent
by Plaintiff. Id. Based on the affidavit, Magistrate Judge Renee McDuffee found probable cause that
the crimes of criminal slander, Mich. Comp. Laws § 750.370, malicious annoyance by writing,
Mich. Comp. Laws § 750.390, false report of crime, Mich. Comp. Laws § 750.411a, and public
corruption, Mich. Comp. Laws § 750.125, were committed and authorized a search of Plaintiff’s
residence. Id. The search warrant returned cell phones, computers and computer paraphernalia.
[Search Warrant Affidavit, Docket No. 8, Pg ID 60]
Plaintiff filed a 42 U.S.C. § 1983 claim in Wayne County Circuit Court on October 16, 2012
alleging violation of her First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights. [Docket No.

1

This is an actual case number for a criminal case in the Eastern District of Michigan.
The case is marked unassigned and involves Possession with Intent to Distribute Cocaine. An
unsecured bond was entered for Eric V. Smith for $50,000 on October 31, 1995. There are no
other entries on the docket.
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1] She further claims a violation of state constitutional rights, intentional inflection of emotional
distress and gross negligence. Defendants removed the action to this Court on November 5, 2012.
On December 19, 2012, Deputy Chief Dennis Richardson declared that Plaintiff’s criminal
investigation closed and the matter “turned over to the prosecuting officials.” [Declaration of Deputy
Chief Dennis Richardson, Docket No. 8, Pg ID 62] To date there is no indication that Plaintiff is
charged with any criminal allegations.
III.

MOTION TO STAY PROCEEDINGS
A.

Heck v. Humphrey Doctrine

Defendants moved the Court for a stay of proceedings pending a resolution of the criminal
investigation. Defendants argue that Plaintiff’s § 1983 suit is (1) a collateral and preemptive attack
and (2) could invalidate possible future convictions. Defendants assert that Heck v. Humphrey, 512
U.S. 477 (1994) applies not only to criminal convictions, but also extends to criminal investigations.
[Doc # 8, Pg ID 43] Heck states that if “a convicted person seeks a 42 U.S.C. § 1983 action for a
violation of his/her civil rights, the conviction must first be overturned, expunged or reversed by
state tribunal.” [Defendants’ Motion Doc # 8, Pg ID 43 (citing Heck, 512 U.S. at 486-87)]
Defendants argue that the Heck rule extends in “circumstances where police officials are in the
process of investigating, but have yet to present the case to prosecutors for charging decisions.” Id.
The Plaintiff’s suit “could imply an invalidity of a criminal conviction and should be dismissed by
the court.” Id.
42 U.S.C. § 1983 provides a cause of action against “[e]very person who, under color of any
[State] statute . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws . . . .” 42 U.S.C. §1983; Carey v.

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Piphus, 435 U.S. 247, 254-257 (1978). “The purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.” Carey, 435 U.S. at 254-57, Wyatt v. Cole, 504 U.S. 158,
161 (1992).
The Court finds the Defendants’ argument without merit. Although many § 1983 actions are
filed by individuals charged or convicted of crimes, it is not a pre-requisite for filing such an action.
Defendants are correct that Heck holds that a conviction must be reversed before a § 1983 lawsuit
can be filed. Heck, 512 U.S. at 486-487. Here, an expansion of Heck to the pending criminal
investigation is inapplicable. By the Defendants’ own admission, they have concluded their
investigation and turned it over to the Prosecutor. [Declaration of Deputy Chief Dennis Richardson,
Docket No. 8, Pg ID 62] The prosecuting officials have not charged the Plaintiff.
Plaintiff’s § 1983 suit is not a preemptive attack on the criminal case because there is no
criminal case. Unlike Heck, where the defendant was attempting to use a federal court to stop his
own state criminal prosecution, this Plaintiff is not.
B.

Younger Abstention Doctrine

Defendants argue that Plaintiff’s “entire [civil] lawsuit complains about the facts and
circumstances related to a pending criminal investigation.” [Doc # 8, Pg ID 43] Defendants assert
that the Court should abstain this action under the Younger. For the reasons set forth below, the
Younger doctrine of abstention is inapplicable.
The Supreme Court in Younger v. Harris, 401 U.S. 37, 41 (1971), emphasized that American
jurisprudence is based on the idea of “Our Federalism” which venerates the principles of equity and
comity for States’ Rights and jurisdiction.. The Younger doctrine dictates that federal courts should

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abstain from interfering in “state proceedings . . . so long as there is no showing of bad faith,
harassment, or some other extraordinary circumstance that would make abstention inappropriate”.
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 435 (1982). In Younger,
the defendant petitioned the federal district court for an injunction to stop the state from prosecuting
him. The district court granted the stay, but the Supreme Court reversed. The Supreme Court reaffirmed its earlier decision in Beal v. Missouri Pac. R. R. Corp., 312 U.S. 45, 49-50 (1941) that
“interference with the processes of the criminal law in state courts . . . and the determination of
questions of criminal liability under state law by federal courts of equity can be justified only in
most exceptional circumstances, and upon clear showing that an injunction is necessary in order to
prevent irreparable injury.” Id. “The state courts are the final arbiters of [state’s laws] meaning and
appropriate application, [and] subject only to review . . . if such construction or application is
appropriately challenged on constitutional grounds.” Hygrade Provision Co. v. Sherman, 266 U.S.
497 (1925); Fenner v. Boykin, 271 U.S. 240 (1926). Younger mandates that federal courts should
not interfere with a state process unless there are extreme conditions and barring any of those
conditions should defer to state court proceedings. Courts should look to abstain (1) in instances in
which there are on-going state proceedings; (2) if the state proceedings implicate important state
interest; and (3) if the state proceedings afford an adequate opportunity to raise federal questions.
In this case, there is no current criminal matter against Plaintiff. Although Defendants argue
that they completed their criminal investigation on December 19, 2012 and a warrant request was
submitted to the Wayne County Prosecutor Office, the prosecutor’s office has not acted upon the

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request.2 There may be an ongoing criminal investigation, but to date, Defendants have not shown
that there is a criminal action against Plaintiff. Defendants are unable to show that there are ongoing proceedings against Plaintiff at this time. Defendants have not met the requirements under
Younger in order for the Court to abstain from this case.
C.

Stay

A stay may be appropriate when the facts of the civil and criminal are closely related and can
lead to some constitutional issues. Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 (W.D. Mich. 2007)
In those cases, “‘[c]ourts are afforded th[e] discretion [to grant a stay] because the denial of a stay
could impair a party’s Fifth Amendment privilege against self-incrimination, extend criminal
discovery beyond the limits set forth in Federal Rule of Criminal Procedure 16(b), expose the
defense’s theory to the prosecution in advance of trial, or otherwise prejudice the criminal case.”’
Chao, 498 F. Supp. 2d at 1037 (quoting Trustees of Plumbers & Pipefitters Nat'l Pension Fund v.
Transworld Mech., Inc., 886 F. Supp. 1134, 1138 (S.D.N.Y. 1995)). “A [stay] is not a preliminary
adjudication on the merits, but a device for preserving the status quo, and preventing the irreparable
loss of rights before judgment.” Textile Unlimited v. A. BMH & Co. Inc., 240 F.3d 781, 786 (9th Cir.
2001).
A stay of a civil case is an extraordinary remedy that should be granted only when justice
so requires. See Pelzer v. City of Pa., 2007 WL 1377662, at *2 (E.D. Pa. May 7, 2007); Crawford
& Sons, Ltd. v. Besser, 298 F. Supp. 2d 317, 319 (E.D.N.Y. 2004). The court must weigh several
factors to determine whether it is appropriate to grant a stay. These considerations include (1) the

2

As noted in Plaintiff’s Motion for Sanctions filed in July 2013, the Wayne County
Prosecutor’s Office has since referred this matter to the Michigan State Police.
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extent to which criminal and civil issues overlap; (2) the posture of the criminal proceedings; (3) the
interest of the plaintiff in proceeding expeditiously and weighed against the potential prejudice cause
by the delay; (4) the burden imposed on the defendants; (5) the interest of the courts; and (6) the
interest of the public. Trustees of the Plumbers & Pipefitters Nat'l Pension Fund, 886 F. Supp. at
1139; see also Chagolla v. City of Chicago, 529 F. Supp. 2d 941, 945 (N.D. Ill. 2008) (footnotes and
citations omitted).
The analysis for granting a stay begins by examining the extent to which the criminal and
civil cases overlap. The more the cases connect, the more likely a stay will be granted. Sec. & Exch.
Comm'n v. Dresser Indus., Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980). In Chagolla, the plaintiff
was falsely arrested and detained by a police officer employed by defendant. The plaintiff was later
released and the police officer was charged criminally for abuse of power in several other instances.
The court granted the stay, finding that Chagolla might seek to use other similar events to support
his claim against defendants. Chagolla, 529 F. Supp. 2d at 946 (N.D. Ill. 2008).
As to the first factor, Defendants argue that the Plaintiff’s civil suit and the criminal
investigation are inextricably linked. Plaintiff’s civil suit was initiated in response to a criminal
investigation by the Defendants. Defendants’ criminal investigation was prompted by anonymous
emails sent to executives of Wayne County Police Department. The investigation led to the
Plaintiff. As part of the investigation, Defendants’ executed a search warrant and seized the property
of the Plaintiff. Plaintiff alleges that the search warrant was fraudulently obtained based on false
information and that the subsequent search was a violation of her civil rights.
The second factor considered is the posture of the criminal proceedings. Courts have been
less likely to grant a stay of the proceedings, if the individual has yet to be indicted. Chao, 498 F.

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Supp. 2d at 1038. The lack of an indictment is not dispositive of whether to deny a motion for a stay,
however it is a persuasive factor in that determination. Id. at 1039. In Chao, the court noted that it
is “concerned that because Defendants have not yet been indicted, a stay of indefinite duration will
further delay any ultimate recovery” which goes to the third factor of the interest to plaintiff as a
result of any delay. Chao, 498 F. Supp. 2d at 1040. The lack of criminal state proceedings weighs
against granting the stay. There have been no criminal charges against Plaintiff in connection with
the search warrant at issue. Unlike Chao, there is nothing to support that the “indictment appears to
be more than some fanciful and far-off possibility.” Chao, 498 F. Supp. 2d at 1040. “The fact
[Plaintiff] face[s] only the threat of criminal charges, and no actual charges as yet, weighs against
a stay.” Chagolla, 529 F. Supp. 2d at 946.
The fourth factor is weighed against Plaintiff’s right to proceed in this Court. In this case,
Defendants must present evidence that the criminal investigation was brought in good faith and not
retaliatory. Defendants have argued that denying the stay would hinder their criminal investigation.
However, the criminal investigation concluded seven months ago and no further action was taken.
The Court is unconvinced at this time that Defendants will suffer an onerous burden if the civil case
were to proceed. On the other hand, a stay will impose a delay on the civil proceedings which is
contrary to the Plaintiff’s interest. Defendants are effectively asking the Court to stay the Plaintiff’s
case indefinitely and that would be tantamount to a denial of her day in court.
The last two considerations are the interests of the Court and the public. The Court has an
interest of managing the docket to provide a resolution for the case. The public’s interest is both to
reach a resolution of any civil matter before this Court and to a resolution of any criminal matter
before the State court.

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After weighing the all the factors above, the most important factor to this Court is the lack
of a criminal charge against Plaintiff, even after the criminal investigation has ended. Without more,
it is premature to grant any stay at this time.
IV.

MOTION FOR SANCTIONS OR SET NEW SCHEDULING ORDER
Plaintiff seeks sanctions against Defendants because of the deposition testimony of Sgt.

Richard Sanchez of the Michigan State Police who testified that there was no ongoing investigation
on Plaintiff. The Wayne County Prosecutor referred the matter to the State Police. Plaintiff asserts
this fact was not revealed to the Court and that Defendants should be sanctioned for failing to do so
and misrepresenting to the Court the status of the criminal investigation. Plaintiff further asserts that
Deputy Chief Richardson’s affidavit and deposition testimony are contradictory in that the case was
referred to the Michigan State Police. Richardson had testified that the matter was turned over to
Robert (Bob) Donaldson of the Wayne County Prosecutor’s Office. Plaintiff asserts the discovery
in this case has been obstructed and that Defendants’ motion regarding the stay is without merit.
Defendants respond that even though there is no current investigation by the Michigan State
Police as to Plaintiff, Sgt. Sanchez has left the matter open as to Plaintiff’s role in the investigation.
Defendants argue that a stay should be entered in this matter.
The Court will not issue sanctions against Defendants at this time. After hearing arguments
on this issue, the Court is satisfied that Defendants have not shown that there is a current criminal
investigation of Plaintiff. The Court will not indefinitely stay the case until such time as Plaintiff
is criminally charged, if at all. The matter will move forward. If in the future Defendants
demonstrate sufficient facts to show that criminal charges have been brought against Plaintiff,
Defendants are free to file another motion.

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V.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that the Defendants’ Motion to Stay of Proceedings Until Resolution of

Pending Criminal Investigation [Doc. No. 8] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Sanctions [Doc. No. 15] is
DENIED, but an Amended Scheduling Order is issued and Plaintiff may re-serve any discovery
requests in this matter.

s/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: August 29, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on August
29, 2013, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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