CASTELLANI v. CITY OF ATLANTIC CITY et al
OPINION. Signed by Judge Renee Marie Bumb on 1/15/2014. (dmr)
NOT FOR PUBLICATION
[Docket No. 4]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID CONNOR CASTELLANI,
Civil No. 13-5848 (RMB/AMD)
CITY OF ATLANTIC CITY et al.,
Bonjean Law Group, PLLC
142 Joralemon Street, Suite 5A
Brooklyn, NY 11201
Attorney for Plaintiff
Patrick J. Wolfe, Esquire
Sharlenn E. Pratt, Esquire
Zarwin Baum DeVito Kaplan Schaer & Toddy, P.C.
Five Greentree Centre, Suite 303
Marlton, NJ 08053-1536
Attorneys for Defendants
BUMB, United States District Judge:
This matter comes before the Court upon a motion by
Defendants, City of Atlantic City, and Police Officers Stearling
Wheaten, Darren Lorady, Avette Harper, Kevin Law, Scott
Sendrick, and Matthew Rogers to stay the proceedings in the
above-captioned matter until the final adjudication of criminal
charges currently pending against Plaintiff, David Connor
For the reasons set forth below,
Defendants’ motion shall be denied without prejudice.
The facts relevant to the instant motion are undisputed.
On October 1, 2013, Plaintiff filed the above-captioned matter
alleging that on June 15, 2013, the Defendant Officers falsely
arrested him while using excessive force in violation of his
Fourth, Eighth, and Fourteenth Amendment rights, conspired to
violate Plaintiff’s civil rights, and committed several tort law
Plaintiff also avers that the City of Atlantic City
(“City”) had a custom, policy or practice that was the moving
force behind the alleged violations.
Plaintiff filed a Notice
of Tort Claim with the City on September 9, 2013.
As a result of the arrest that gave rise to this matter,
there are currently pending criminal charges against Plaintiff
filed in the New Jersey Superior Court, Atlantic County.
criminal charges include: disorderly conduct in violation of
N.J.S.A. § 2C:33-2(A)(1); aggravated assault on a police officer
in violation of N.J.S.A. § 2C:12-1(b)(5)(a); resisting arrest by
using physical force and violence in violation of N.J.S.A. §
2C:29-2A(3)(A); and assault of a police animal in violation of
N.J.S.A. § 2C:29-3.1.
The Defendants contend that this matter must be stayed
pending the final adjudication of Plaintiff’s criminal charges
pursuant to the holding in Wallace v. Kato, 549 U.S. 384 (2007)
and that Plaintiff’s pendent state law tort claims must be
stayed pursuant to the New Jersey Tort Claims Act.
of the stay is indefinite “pending the outcome of the criminal
Defs.’ Br. at 12.
The Plaintiff opposes the stay and
argues that there is “no authority to justify a stay where the
gravamen of the Plaintiff’s complaint is excessive force.” P’s
Br. at ¶7.
The stay of a civil proceeding is an extraordinary remedy.
Walsh Securities, Inc. v. Cristo Property Management, Ltd., 7 F.
Supp. 2d 523, 526 (D.N.J. 1998).
However, a court has the
discretion to stay a case if the interests of justice so
U.S. v. Kordel, 397 U.S. 1, 12 n. 27 (1970).
of a civil case where there are pending criminal proceedings is
not constitutionally required, but may be warranted in certain
Id.; Cress v. City of Ventnor, No. 08-1873, 2009
U.S. Dist. LEXIS 22172, at *5 (D.N.J. Mar. 18, 2009).
The factors to be considered in deciding whether to grant a
1) the extent to which the issues in the criminal
and civil cases overlap;
2) the status of the case, including whether the
defendants have been indicted;
3) the plaintiff’s interests in proceeding
expeditiously weighed against the prejudice to
plaintiff caused by a delay;
4) the private interests of and burden on
5) the interests of the court; and
6) the public interest.
Walsh Securities, 7 F. Supp. 2d at 527.
a) The Walsh Securities Factors
Under the first factor articulated in Walsh Securities,
this Court must examine the extent to which the issues pending
in the civil and criminal proceedings at issue overlap.
overlap is extensive here: both matters stem entirely from the
same incident and concern the facts and circumstances
surrounding Plaintiff’s arrest and the force used in
effectuating that arrest.
While this important factor weighs in
favor of the stay requested by Defendants, all of the other
Walsh Securities factors do not, and the request to stay must be
“The strongest case for a stay of discovery in a civil case
occurs during a criminal prosecution after an indictment is
returned, as it is then that the potential for selfincrimination is greatest.”
United States v. All Articles of
Other-Sonic Gneric Ultrasound Transmission Gel, No. 12-2264,
2013 U.S. Dist. LEXIS 42909, at * 7 (D.N.J. Mar. 26, 2013).1
there have been no indictments in this matter and there is no
indication that the criminal trial against Plaintiff will soon
commence, any stay would be indefinite and, thus, prejudicial to
See Cress, 2009 U.S. Dist. LEXIS 22172, at * 7.
Moreover, as in Cress, Plaintiff here is willing to forgo a stay
protecting his Fifth Amendment rights.
Thus, the second Walsh
Securities factor weighs in favor of Plaintiff.
This Court also finds that the Plaintiff’s interest in
proceeding expeditiously in this matter combined with the
prejudice to Plaintiff that would result from the indefinite
stay requested militates in favor of denying the motion to stay.
With respect to the fourth Walsh Securities factor, the
Defendants contend that, where there are parallel civil and
criminal proceedings, the target of the criminal case may
exploit civil discovery for the advancement of his criminal
Defs.’ Reply Br. at 5.
This concern is currently
unfounded because there is no current evidence of such
exploitation and because “a court can use its authority in
managing civil discovery to prevent a criminal defendant from
using civil discovery to evade the limited criminal discovery
The Defendants rely heavily on this decision in support of their
position that a stay is warranted. A critical distinguishing factor is that
the stay requested in All Articles was only 180-days, unlike the indefinite
stay sought by Defendants in the instant case.
Cress, 2009 U.S. Dist. LEXIS 22172, at *9.
Cress, “[i]f it appears to the Court that Plaintiff [is] not
conducting discovery primarily for the civil case, but instead
for the purpose of defending [Plaintiff’s] criminal charges, the
Court can take appropriate action to delay, limit or postpone
Thus, Defendants' interests can still be protected
while permitting this civil case to proceed.”
Id. at 9-10.
implementation of such safeguards mitigates against granting a
Because this Court has an interest in efficiently
addressing the merits of its cases and there has been no trial
date set in Plaintiff’s criminal case, a stay at this juncture
would be indefinite and therefore unduly prejudicial to
Finally, this Court finds that if Plaintiff’s
allegations are true, they certainly raise issues of significant
public concern, and, certainly, this matter has garnered
significant attention from the public.
Therefore, both the
fifth and sixth factors from Walsh Securities weigh in favor of
denying a stay in this matter.
b) Wallace & Heck Arguments
In addition to analyzing the Walsh Securities factors, this
Court must also address the Defendants’ argument that this
matter should be stayed pursuant to dicta contained in the
Supreme Court’s decision in Wallace v. Kato, 549 U.S. 384
In Wallace, the Court, discussing its prior decision in
Heck v. Humphrey, 512 U.S. 477 (1994) stated:
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, and in accord with common practice, to stay the
civil action until the criminal case or the likelihood of a
criminal case is ended. 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.
512 U.S. at 393-94 (internal citations omitted).
the Wallace Court explicitly rejected “the adoption of a
principle that goes well beyond Heck: that an action which would
impugn an anticipated future conviction cannot be brought until
that conviction occurs and is set aside.”
Id. at 393 (emphasis
This premise, rejected in Wallace, is exactly
what the Defendants ask this Court to now adopt in light of
Plaintiff’s false arrest claim.
The Court will decline to do so
consistent with the dictates of Wallace.
Moreover, “[i]n Wallace, the Supreme Court did not create a
mandatory duty to stay a civil action in all instances when a
related criminal action is pending.
Instead the Supreme Court
held that this decision is within the court’s discretion.”
Cress, 2009 U.S. Dist. LEXIS 22172, at *12-13.
For the reasons
already articulated, this Court finds that its discretion should
be exercised in favor of denying the requested stay, and the
decision in Wallace does not mandate a stay under the instant
As noted by Plaintiff, the true gravamen of his complaint
is excessive force, and the Third Circuit has made clear that
the Heck doctrine does not create a per se bar to a claim for
“This Court has previously determined that a
conviction for resisting arrest does not necessarily preclude
and arrestee for recovering damages on a § 1983 excessive force
claim. . . . [Additionally,] the mere fact of a conviction for
assault or similar conviction arising out of the same incident
does not automatically preclude recovery on an excessive force
claim brought under § 1983.”
Garrison v. Porch, 376 Fed. Appx.
274, 277-78 (3d Cir. 2010)(citing Nelson v. Jashurek, 109 F.3d
142, 145-46 (3d Cir. 1997)).
Therefore, Defendants concern that
this Court would have to “guess whether a ruling in the civil
suit would impugn or imply the invalidity of a future
conviction, which would require dismissal under Heck v.
Humphrey,” (Defs’ Reply Br. at 3), is unavailing for the reasons
set forth by the Third Circuit in Garrison.
See Cress, 2009
U.S. Dist. LEXIS 22172, at * 11-16 (rejecting a similar argument
under Wallace and Heck).
c) The Younger Abstention
Defendants also ask that this Court stay this matter based
on the principles announced in the Younger v. Harris decision,
401 U.S. 37 (1971), which held that “federal courts should
abstain from enjoining state criminal prosecutions, because of
principles of comity and federalism, unless certain
extraordinary circumstances exits.”
143, 154 (3d Cir. 2004).
Marran v. Marran, 376 F.3d
For the reasons already discussed at
length above, this Court cannot, at this juncture, find that
this federal litigation will interfere with the State’s criminal
case against Plaintiff and will decline to stay this case.
the Supreme Court recently stated with respect to Younger: “We
have cautioned . . . that federal courts ordinarily should
entertain and resolve on the merits an action within the scope
of a jurisdictional grant, and should not ‘refus[e] to decide a
case in deference to the States.’” Sprint Communs., Inc. v.
Jacobs, 134 S. Ct. 584, 588 (2013) (quoting New Orleans Public
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350,
d) The New Jersey Tort Claims Act
Finally, this Court declines to grant Defendants’ motion
because of Plaintiff’s failure to comply with the New Jersey
Tort Claims Act’s six-month waiting period.
See N.J.S.A. §
While this Court agrees that Plaintiff did not wait the
requisite six-months, the Court notes that where such timing
violations occur, they generally result “only in a dismissal
Hilburn v. Bayonne Parking Auth., No. 07-
5211, 2009 U.S. Dist. LEXIS 6762 at *30 n.5 (D.N.J. Jan. 30,
Therefore, in the interest of judicial economy, this
Court will not require Plaintiff’s claims to be dismissed
without prejudice only to be re-filed later and will allow the
tort claims to remain in this action despite the failure to
strictly abide by the waiting period.
See id. (allowing
plaintiffs’ tort claims to remain despite violation in the
interest of judicial economy).
For the reasons set forth above, this Court denies
Defendants’ motion to stay without prejudice.
Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 15, 2014
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