WALKER v. COUNTY OF GLOUCESTER et al

Filing 19

MEMORANDUM OPINION AND ORDER granting 8 Motion to Stay; ORDERED that the Court will conduct a telephone status conference on 9/6/2016 at 2:00 PM, at which time the Court will consider whether to lift or continue the stay, etc. Signed by Magistrate Judge Ann Marie Donio on 4/28/2016. (dmr)

[D.I. 8]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TERRY J. WALKER,

Civil No. 15-7073 (RBK/AMD)

Plaintiff,
v.
COUNTY OF GLOUCESTER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Presently before the Court is the motion of Defendant
Elbert B. Johnson, Jr. (hereinafter, “Defendant Johnson”) to stay
the proceedings pending resolution of a criminal matter in the
Superior

Court

of

New

Jersey,

Salem

County.

(See

generally

Memorandum of Law in Support of Defendant Elbert Johnson, Jr.’s
Notice of Motion to Stay Proceedings (hereinafter, “Def.’s Br.”)
[D.I. 8-2].) Plaintiff Terry J. Walker (hereinafter, “Plaintiff”)
opposes the motion. (See Brief in Opposition (hereinafter, “Pl.’s
Opp’n”) [D.I. 10].) The remaining Defendants take no position on
the motion. The Court has considered the parties’ submissions,
held

oral

argument,

and

for

the

reasons

that

follow,

Defendant Johnson’s motion to stay the proceedings.

grants

In

this

action,

Plaintiff

alleges

that

Defendants 1

violated his civil rights by “using excessive force upon Plaintiff
while incarcerated; sexually harassing and assaulting Plaintiff
while incarcerated; illegally and unlawfully searching Plaintiff
while incarcerated and engaging in retaliatory behavior against
Plaintiff

for

the

grievances

Plaintiff

filed

against

certain

correctional officers at the Salem County Correctional Facility.”
(Amended Complaint [D.I. 4], 2.) Plaintiff alleges that he was
sexually assaulted by Defendant Johnson (id. at ¶ 4), and has
asserted claims for violations of his civil rights under the First,
Fourth, Eighth, and Fourteenth Amendments. (See generally id.) On
April 1, 2015, Defendant Johnson was indicted on charges of sexual
assault of Plaintiff in violation of N.J.S.A. 2C:14-2c and official
misconduct in violation of N.J.S.A. 2C:30-2. (See Exhibit A to
Certification of Christopher Alan Gray, Esq. (hereinafter, “Gray
Cert.”) [D.I. 8-4] (setting forth a copy of Defendant Johnson’s
Indictment).) Defendant Johnson’s counsel asserts that Defendant
Johnson’s criminal matter is pending in New Jersey Superior Court,
Salem County, Criminal Division (Gray Cert. [D.I. 8-3], ¶ 4) and
represented at oral argument that while a criminal trial date has

1

In addition to Defendant Johnson, Plaintiff asserts claims
against Defendants County of Gloucester, Warden Raymond C.
Skradzinski, the Salem County Board of Chosen Freeholders, the
Gloucester County Board of Chosen Freeholders, Salem County
Corrections Staff Members Nelson, Shannon, Grishom, Crawford, LT,
Riley, and John Doe(s) A-Z. (See Amended Complaint [D.I. 4].)
2

not been set, the criminal trial is likely to take place in the
summer of 2016.
“District courts possess inherent discretion to stay a
proceeding

whenever

‘the

interests

of

justice’

mandate

‘such

action.’” Akishev v. Kapustin, 23 F. Supp. 3d 440, 445 (D.N.J.
2014) (quoting United States v. Kordel, 397 U.S. 1, 12 n.27
(1970)). Such discretion is implicitly derived from the court’s
“inherent authority ‘to control the disposition of the causes on
its docket with economy of time and effort[.]’” Id. (quoting Landis
v. N. Am. Co., 299 U.S. 248, 254-55 (1936)). While “[a] stay of a
civil case where there are pending criminal proceedings is not
constitutionally required,” such a stay “may be warranted in
certain circumstances.” See Castellani v. City of Atlantic City,
No.

13-5848,

2014

WL

201955,

at

*1

(D.N.J.

Jan.

15,

2014)

(citations omitted). Accordingly, in assessing whether a stay of
a civil proceeding is appropriate in light of a parallel criminal
proceeding, the courts consider a number of factors. See Walsh
Sec., Inc. v. Cristo Prop. Mgmt. Ltd., 7 F. Supp. 2d 523, 526-27
(D.N.J. 1998). These factors include: “1) the extent to which the
issues in the criminal and civil cases overlap; 2) the status of
the [criminal] case, including whether the defendant[] ha[s] been
indicted; 3) the plaintiff's interest in proceeding expeditiously
weighed against the prejudice to plaintiff caused by a delay; 4)
the

private

interests

of

and

burden
3

on

defendant[];

5)

the

interests of the court; and 6) the public interest.” Id. at 527
(citation omitted).
With

respect

to

the

first

Walsh

factor,

the

Court

considers the overlap between the civil and criminal proceedings.
See Walsh, 7 F. Supp. 2d at 527. In this case, the civil and
criminal cases both arise from the same events and thus the overlap
between

the

parallel

proceedings

“extensive.” 2 See,

is

e.g.,

Castellani, 2014 WL 201955 at *2 (observing that “[s]uch overlap
is

extensive

incident

and

here:

both

concern

the

matters
facts

stem
and

entirely

from

circumstances

the

same

surrounding

[p]laintiff’s arrest and the force used in effectuating that
arrest”). The Court therefore concludes that this factor weighs in
favor of a stay of the proceedings. See Walsh, 7 F. Supp. 2d at
527 (finding that the first Walsh factor supported a stay as the
parallel proceedings involved “many of the same issues”).
With respect to the second Walsh factor, the Court
assesses the “[t]he stage of the parallel criminal proceeding.”
See id. In general, “[t]he 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 self-

2

In Plaintiff’s initial papers, Plaintiff acknowledged the overlap
(see Pl.’s Opp’n [D.I. 10], 1 on the docket). At oral argument,
Plaintiff’s counsel took a different position. The Court, however,
concludes that there is significant overlap between the criminal
and civil cases.
4

incrimination is greatest.” United States v. All Articles of OtherSonic [Generic] Ultrasound Transmission Gel, No. 12-2264, 2013 WL
1285413, at *2 (D.N.J. Mar. 27, 2013) (citations omitted). Here,
Defendant Johnson has been indicted and consequently, this factor
weighs in favor of a stay of the proceedings.
With respect to the third Walsh factor, the Court weighs
the non-moving party’s interest in expeditiously resolving the
litigation against any prejudice to the non-movant in staying the
matter. See Walsh, 7 F. Supp. 2d at 528. Plaintiff argues that
while

a

stay

of

Defendant

Johnson’s

deposition

and

certain

interrogatory responses may be warranted, an entire stay is not
warranted.

Specifically,

Plaintiff

asserts

that

much

of

the

discovery is within the possession of the New Jersey State Police
and that production of such discovery will not prejudice Defendant
Johnson. (Pl.’s Opp’n [D.I. 10], 1-2 on the docket.) Plaintiff
also asserts that an indeterminate stay will prejudice Plaintiff
by

potentially

causing

a

two-year

delay

and

prohibiting

Plaintiff’s ability to preserve evidence. (Id. at 2 on the docket.)
Defendant Johnson objects to a question-by-question approach to
the deposition of Defendant Johnson 3 and also argues that a partial
stay will prejudice Defendant Johnson particularly in the event
that other depositions are taken. (Reply Brief in Opposition

3

At oral argument, Plaintiff agreed to a stay of the entire
deposition of Defendant Johnson.
5

(hereinafter, “Def.’s Reply”) [D.I. 16], 4-5 on the docket.) In
Walsh, the court found that the third factor supported a stay
despite Plaintiff’s argument that “a delay would cause memories to
fade and assets to dissipate” and that “[a] stay could push back
the resolution of the civil case by several months or even years.”
Walsh, 7 F. Supp. 2d at 528. The Walsh court reasoned that the
plaintiff “has asserted no injury that is particularly unique.”
Id.

Similarly,

in

Barker

v.

Kane,

the

district

court,

in

considering a motion to stay pending resolution of a criminal case
that was scheduled for trial in five months, reasoned that “[t]he
mere fact of a less expeditious resolution is insufficient to show
prejudice” and that the plaintiff “may be required to ‘demonstrate
a particularly unique injury, such as the dissipation of assets or
an attempt to gain an unfair advantage from the stay.’” No. 151924, 2016 WL 827129, at *6 (M.D. Pa. Mar. 3, 2016) (quoting In re
Adelphia Commc’ns Sec. Litig., No. 02-1781, 2003 WL 22358819, at
*4 (E.D. Pa. May 13, 2003)). In Barker, the plaintiff argued that
he would be prejudiced by a stay in part because “‘the timely
preservation of . . . testimony’ . . . [was] critical to his case.”
Id. The Barker court found that while the plaintiff “obviously
ha[d] an interest in the expeditious resolution of his civil
claims[,]” the plaintiff failed “to identify any interests so
substantial or time-sensitive as to require immediate resolution”
and that “[t]he risks of less-than-pellucid witness recollection
6

and unavailable remedies are slight given the brevity of the
proposed delay.” Id. Consequently, the Barker court concluded that
the plaintiff would “experience only minimal prejudice from a fivemonth

deferment”

of

the

matter.

Id.

Similarly,

Plaintiff’s

prejudice argument in the present matter centers on his ability to
“obtain and preserve” evidence. 4 (Pl.’s Opp’n [D.I. 10], 2 on the
docket.) While Plaintiff clearly has an interest in the prompt
resolution of this case, the Court finds, as in Barker, that
Plaintiff

has

not

presented

a

substantial

or

time-sensitive

interest that warrants immediate resolution. The Court concludes,
therefore, that this factor weighs in favor of a stay at this time.
With respect to the fourth Walsh factor, the Court
assesses the burden on the movant in proceeding without a stay.
See Walsh, 7 F. Supp. 2d at 528. Here, Defendant Johnson would be
burdened by proceeding without any stay. As set forth supra,
Defendant Johnson has been indicted on criminal charges and alleges
that “[h]e must choose between waiving his Fifth Amendment right
in defending himself in a civil lawsuit or asserting the privilege
and probably losing in the civil case.” (Def.’s Br. [D.I. 8-2], 5
on the docket.) Defendant Johnson’s interest in preserving his

4

Counsel for Defendant Johnson represented at oral argument that
he has discovery from the New Jersey State Police and the Salem
County Prosecutor’s Office and has also requested that evidence be
preserved at the New Jersey State Laboratory. The Court finds no
basis to conclude that evidence in the present matter is likely to
be lost.
7

Fifth Amendment right against self-incrimination overrides any
argument to move forward with the litigation. See, e.g., Mejia v.
Bros. Petroleum, LLC, No. 12-2842, 2014 WL 7040145, at *3 (E.D.
La. Dec. 11, 2014) (citation omitted) (finding prejudice to a
litigant where he would be forced to “cho[o]se between his civil
discovery obligations and his Fifth Amendment privilege against
self-incrimination[]”); see also Maloney v. Gordon, 328 F. Supp.
2d 508, 513 (D. Del. 2004) (finding prejudice to a litigant where
proceeding with discovery required the movant to choose between
asserting his rights or engaging in the civil matter). The Court
concludes, therefore, that this factor weighs in favor of a stay
of the proceedings.
The fifth Walsh factor concerns the interest of the Court
“in resolving individual cases efficiently” Walsh, 7 F. Supp. 2d
at 528, and “avoiding unnecessary litigation that would burden its
docket and ‘hamper judicial economy.’” Med. Inv. Co. v. Int’l
Portfolio, Inc., No. 12-3569, 2014 WL 2452193, at *4 (E.D. Pa. May
30, 2014) (quoting Doe v. Sipper, 869 F. Supp. 2d 113, 117 (D.D.C.
2012)). A stay in the present matter furthers the interests of the
Court

“by

reducing

Additionally,

the

although

risk

of

Plaintiff

duplication
argues

of

that

effort.”

Id.

“[Defendant]

Johnson’s testimony and statements are not necessary for discovery
to proceed on a limited basis against [Defendant] Johnson and
otherwise against all remaining defendants” (Pl.’s Opp’n [D.I.
8

10], 2 on the docket), the complaint is replete with allegations
concerning Defendant Johnson’s alleged conduct, and the Court
concludes

that

proceeding

with

any

discovery

would

not

be

judicially efficient at this time. See, e.g., Colombo v. Bd. of
Educ. for the Clifton Sch. Dist., No. 11-785, 2011 WL 5416058, at
*6 (D.N.J. Nov. 4, 2011) (concluding, in a matter with multiple
defendants where only one defendant was indicted, that because the
“[p]laintiff’s

claims

relate[d]

directly

to

[the

indicted

defendant’s] alleged actions . . . discovery with regard to the
[other defendants would] likely be impeded, or affected, when [the
indicted defendant] invoke[d] his Fifth Amendment privilege” and
that a stay of the entire matter was warranted “in the interest of
efficiency and in avoiding piecemeal litigation”). Accordingly,
the Court concludes that this factor weighs in favor of a stay of
the proceedings.
With

respect

to

the

sixth

Walsh

factor,

the

Court

considers the public interest. Walsh, 7 F. Supp. 2d at 529. The
Court notes that “the public interest is promoted by allowing a
complete,

unimpeded

criminal

investigation.”

Colombo,

2011

WL

5416058, at *6. Additionally, “‘the public’s interest in the
integrity of the criminal case is entitled to precedence of the
civil litigant.’” Id. (quoting Javier H. v. Garcia-Botello, 218
F.R.D. 72, 74 (W.D.N.Y. 2003)). The Court concludes that this
factor supports a stay of the proceedings. The public’s interest
9

is furthered by the criminal matter going forward unimpeded and
the Court concludes that there is no showing that there is harm to
the public interest if the stay is granted. See Walsh, 7 F. Supp.
2d at 529 (noting that “[c]ourts have denied stays where the civil
case, brought by a government agency, was intended to protect the
public by halting the distribution of mislabeled drugs, . . . or
the

dissemination

of

misleading

information

to

the

investing

public”). Accordingly, on balance, the Court concludes that the
Walsh factors support a stay of the current matter. Consequently,
for the reasons set forth herein, and for good cause shown,
IT IS on this 28th day of April 2016,
ORDERED that Defendant Johnson’s motion requesting a
stay of the proceedings [D.I. 8], shall be, and is hereby, GRANTED;
and it is further
ORDERED that this matter is stayed until further Order
of the Court; and it is further
ORDERED that the Court will conduct a telephone status
conference on September 6, 2016 at 2:00 P.M., at which time the
Court will consider whether to lift or continue the stay. Counsel
for Defendant Johnson shall initiate the telephone call.

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc:

Hon. Robert B. Kugler
10