RIOS v. CITY OF BAYONNE et al

Filing 144

OPINION. Signed by Judge Kevin McNulty on 4/8/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:12-4716

Jason RIOS,

(KM)(MAH)
Plaintiff,
V.

OPINION

CITY OF BAYONNE et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
On February 9, 2015, Magistrate Judge Michael A. Hammer denied
the motion of all Defendants to continue a stay of discovery due to an
ongoing parallel criminal investigation, pursuant to Fed. R. Civ. P. 26(c).
(SeeOrder, ECFNo. 131; Transcript of Feb. 9,2015 Ruling 11:2—12:15
(“Feb. 9, 2015 Tr.”), ECF No. 134-2, Ex. F). One defendant, Officer James
Mahoney, has appealed that ruling to this Court. (ECF No. 134). For the
reasons expressed by Magistrate Judge Hammer in his ruling, as well as
those set forth below, the appeal is DENIED.
I.

BACKGROUND’

On July 30, 2012, Plaintiff Jason Rios filed a civil rights complaint
against the City of Bayonne; the Bayonne Police Department; Chief of
Police Robert Kubert; Lt. Robert Deczynski; Sgt. Franco Amato; Officer
James Mahoney; Officer Joseph Saroshinsky; Officer Roman Popowski;

A more detailed description of the facts is included in my Memorandum
Opinion regarding the Defendants’ motion to dismiss, dated November 12,
2013. (ECFNo. 70).
1

1

and John Does 1—10. (Compl., ECF No. 1). Rios alleged six causes of
action in his complaint: (1) false arrest and imprisonment under 42

§ 1983 (Id. ¶j 58—62); (2) illegal search and seizure under 42
U.S.C. § 1983 (Id. ¶j 63—67); (3) excessive force under 42 U.S.C. § 1983
(Id. ¶f 68—73); (4) municipal liability under 42 u.s.c. § 1983 and N.J.
Stat. Ann. § 10:6-2 (Id. ¶ 74—79); (5) false arrest and imprisonment,
illegal search and seizure, and excessive force under N.J. Stat. Ann. §

U.S.C.

¶{ 80—90); and (6) illegal search and seizure under the New
Jersey Constitution (Id. ¶J 9 1—95). On November 12, 2013, I granted
10:6:2 (Id.

motions to dismiss all claims against Lt. Deczynski and Chief Kubert,
and granted the motion to dismiss Count 4 under 42 U.S.C.

§ 1983 as

against the City of Bayonne and the Bayonne Police Department. (See
Mem. Op., ECF No. 70; Order, ECF No. 71).
a. Incident
On August 29, 2010, Rios called 911 to report that his vehicle was
on fire behind his residence at 72 West 33rd Street, Bayonne, New
Jersey. (Id. ¶19). Members of the Bayonne Fire Department and the
Bayonne Police Department (“Bayonne PD”), including Defendants
Amato, Mahoney, Saroshinsky, and Popowski, were dispatched to the
scene. (Id. ¶2 1). Rios alleges that after the fire was extinguished, he
walked over to the vehicle to assess the damage and was advised by
firefighter Christopher Pellicca not to touch the vehicle, which was still
smoldering. (Id. ¶J26—28). Rios alleges that he obeyed Pellicca’s order but
“became upset” upon seeing the damage to his car. (Id.

¶J 30—3 1).

Pellicca then allegedly “smirked and made an insensitive remark,” to
which Rios responded. (Id. ¶J32—33).
Then, Rios alleges that as he was walking away from the car,
Mahoney, Saroshinsky, Popowski, and Amato approached him from
behind. (Id. ¶j33—34). Rios alleges that the officers pepper-sprayed the
back of his head and his face, put him on the ground, and arrested him.
2

(Id. ¶f35—38). Following this, Mahoney allegedly brought Rios to a hose,
flushed Rios’s eyes, and then escorted Rios to a police car. (Id. ¶J39—4O).
At this point, Mahoney, Saroshinsky, and Popowski allegedly
patted down Rios, who was handcuffed. (Id. ¶J41—43). Rios alleges that
Mahoney then threw him face-first into the concrete, and that all three of
the officers physically assaulted him. (Id. ¶j44—45). As a result, Rios lost
consciousness. (Id. ¶46).
Amato then allegedly told Saroshinsky to move the police car and
told the Bayonne Fire Department to move the fire engine so as to block
the onlookers who had congregated in the area. (Id. ¶J47—49).
Rios accuses Mahoney and Saroshinsky of authoring a false police
report relating to the incident. (Id. ¶51). Rios also alleges that Mahoney
“falsely swore” in Complaint 0901-W-2010-01 176 that Rios had resisted

§ 2C:29-2A(1) and had obstructed an
arson investigation in violation of N.J. Stat. Ann. § 2C:29—1(b). (Id. ¶52).

arrest in violation of N.J. Stat. Ann.

b. Procedural history
On October 25, 2013, all of the defendants moved to stay discovery
because there was an ongoing criminal investigation of them regarding
the same incident. (See Defs. Mot. to Stay, ECF No. 67 (brief at 68-4)).
The defendants argued that discovery could not continue because the
defendants would either have to invoke the Fifth Amendment or risk
incriminating themselves, either in depositions or by the act of producing
documents in discovery.
On August 14, 2013, the fire and police departments were served
with grand jury subpoenas from the U.S. Attorney’s Office for the District
of New Jersey (“USAO”) related to the August 29, 2010 incident; the
subpoenas mentioned the officers at the scene by name. (See Transcript
of Nov. 18, 2013 Hearing (“Nov. 18, 2013 Tr.”), ECF’ No. 134-2, Ex. B,

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2
10:4—7, 19:9—20:21; see also Davie Cert. ¶4, ECF No. 64). The
government also subpoenaed the Internal Affairs Unit’s files. (Id. 24:4—8).
The individual defendants, however, were not subpoenaed. (Id. 32:24—
33:1). In addition, Mahoney’s attorney, Mr. Till, stated at oral argument
before Judge Hammer “that there were statements made to, not to [Till],
but to other counsel that indictment [of the officers] was imminent.” (Id.
36:9—11; see also 45:5—8). Rios was also “summoned to speak with
federal law enforcement” regarding the federal criminal investigation of
the defendants. (Id. 63:4—7 (quoting P1. Opp. to Defs. Mot. to Stay at 2,
ECF No. 69)).
On November 18, 2013, Judge Hammer held a hearing and ruled
on the first motion to stay discovery. (See id.). In his ruling, he properly
analyzed the Walsh factors in determining whether to grant a stay. See
Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F. Supp. 2d 523, 527
(D.N.J. 1998). First, Judge Hammer found that there was an ongoing
federal criminal investigation regarding the August 29, 2010 incident and
that there was a “high probability of at least some significant overlap
between the grand jury investigation and the discovery in this matter.”
(Nov. 18, 2013 Tr. 62:13—63:23). Second, Judge Hammer determined
that, although the criminal case was in the pre-indictment stage, the
issuance of subpoenas suggested the defendants themselves were being
investigated. It followed that, if discovery should continue in the current
case, the defendants might have to choose between (1) the risk of
incriminating themselves in depositions; or (2) invoking their Fifth
Amendment rights and potentially subjecting themselves to an adverse
inference in the current case. (Id. 64:2—69:5 (noting that the production
of documents would not be stayed)). Third, Judge Hammer found that
Rios would not suffer substantial prejudice during a stay because Rios

The Certification of Kenneth P. Davie, dated October 7, 2013, submitted
in support of the defendants’ motion to seal; ECF No. 62 = Davie Cert.
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could still interview witnesses and develop his case. (Id. 69:6—70: 11).
Fourth, Judge Hammer determined that the Court had an interest in
staying proceedings because without a stay, defendants would likely
invoke the Fifth Amendment in depositions, making the discovery
process inefficient and “burden[ingj the Court with a constant stream of
privilege issues.” (Id. 70:12—71:2). Fifth, Judge Hammer found that the
public interest did not weigh in favor of either party. (Id. 7 1:3—8).
Balancing all of the Walsh factors, Judge Hammer concluded that they
weighed in favor of granting a stay, and he stayed the depositions for a
period of 90 days. (Id. 7 1:9—18). Document discovery, however, was not
stayed. (Id. 71:18—20).
On May 27, 2014, Judge Hammer held oral argument regarding
whether the stay should be treated as having expired. (See Transcript of
May 27, 2014 Hearing (“May 27, 2014 Tr.”), ECF No. 134-2, Ex. C).
On September 22, 2014, Judge Hammer heard the parties’
arguments as to whether to extend the stay. (See Transcript of
September 22, 2014 Hearing (“Sept. 22, 2014 Tr.”), ECF No. 134-2, Ex.
D). At the hearing, Rios’s counsel, Mr. Aboushi, informed Judge Hammer
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that FBI Agent Laura Rugler told his co-counsel, Mr. Silberman, “that
the FBI completed their investigation and were not moving forward with
any charges against the defendants.” (Id. 11:11—18). Mr. Till confirmed
that the defendants had no reason to disbelieve this representation. (Id.
12:3—12). Seemingly Mr. Till had no particular reason to believe it, either,
because he asked Judge Hammer for a Fed. R. Evid. 104 hearing on the
issue of whether there was a pending criminal investigation. (Id. 12:3—6;
13:16—20). Because it was unclear at that point whether the government
had concluded its investigation of the officers, Judge Hammer continued
the stay, for the same reasons as he articulated in his original ruling on
November 18, 2013, and scheduled an additional hearing on December
3

The spelling of the FBI Agent’s name is phonetic in the transcript.
5

10, 2014. (Id. 28:8—16). Judge Hammer also instructed Mr. Aboushi to
send notice to the USAO regarding the December 10, 2014 hearing so
that they could appear if they wished. (Id. 30:1—4).
On December 10, 2014, Judge Hammer conducted a hearing
regarding the stay and received updates as to the status of any
government investigations. (See Transcript of December 10, 2014
Hearing (“Dec. 10, 2014 Tr.”), ECF No. 134-2, Ex. E). Defendants
Saroshinsky and Mahoney received letters informing them that (1) they
were no longer targets of a criminal investigation by the DOJ Civil Rights
Division and (2) the USAO took no position with respect to whether the
current civil proceedings should be stayed. (Id. 4:6—6:21). Counsel for
Mahoney, Mr. Till, said that the AUSA Eicher had represented to him
that the USAO would not take a position as to whether it was
investigating Mahoney. (Id. 7:24—8:10). Mr. Till nevertheless argued that
he remained concerned about a potential USAO investigation for two
reasons: (1) because the letters to Saroshinsky and Mahoney included
the following disclaimer: “Please be advised that [the DOd Civil Rights
Division’s] conclusion in this matter does not preclude other components
of the U.S. Department of Justice from taking action where appropriate
under their separate enforcement authority,” (Id. 12:8—17); and (2)
because the USAO took no position with respect to a stay in the current
matter, which led Mr. Till to an “inference” that USAO has “left all their
options open.” (Id. 12:18—25). Counsel for defendants Saroshinsky and
Popowski, Ms. Garcia, also noted that she remained concerned about the
USAO subpoenas that were part of the basis for Judge Hammer’s first
imposition of a stay. (Id. 16:8—18:13). Till and Garcia acknowledged,
however, that neither of them had asked the USAO for an update since
one year before the December 10, 2014 hearing. (Id. 18:9—25). Judge
Hammer noted that Amato and Popowski had not received letters
informing them that they were no longer targets of a DOJ investigation.

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(Id. 20: 10—21:17). At that point, plaintiff Rios’s counsel, Mr. Silberman,
added that he had received a letter from the DOJ Civil Rights Division
(ECF No. 116-1) stating that their investigation was closed. (Id. 24:15—
22). That letter reads in pertinent part as follows:
We recently completed our review of the results of the
investigation to determine whether a federal criminal
prosecution could be brought concerning allegations that the
civil rights of Mr. Jason Rios were violated by officials of the
Bayonne Police Department. After careful consideration, we
concluded that the evidence does not establish a
prosecutable violation of the federal criminal civil rights
statutes. Accordingly, we have closed our investigation and,
based on current information, do not plan to take any
further action.
(DOJ Letter Oct. 3, 2015, ECF No. 116-1).
After receiving all of this information, Judge Hammer adjourned
the proceedings and continued the stay, with instructions for the parties
to return with the following information: (1) whether Popowski and
Amato had received a similar letter informing them that they are not
targets of a DOJ investigation; and (2) whether the USAO was willing to
say any more about a potential investigation of Mahoney. (Dec. 10, 2014
Tr. 30:9—31:21).
On February 9, 2015, Judge Hammer held a final hearing
regarding the stay issue. (See Feb. 9, 2015 Tr., ECF No. 134-2, Ex. F).
Before that hearing, the parties submitted letters in response to Judge
Hammer’s requests for information. (See Landis Jan. 26, 2015 Letter,
ECF No. 127; Till Jan. 26, 2015 Letter, ECF No. 128). The parties’
responses stated that the DOJ Civil Rights Division had closed its
investigation and that the USAO had “invoked its policy of not indicating
one way or the other whether there was an open or closed investigation.”
(Feb. 9, 2015 Tr. 4:25—5:11; see Landis Jan. 26, 2015 Letter; Till Jan.
26, 2015 Letter). At the hearing, Mr. Till confirmed that he had no

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knowledge of any open or ongoing criminal investigation of Mahoney.
(Feb. 9, 2015 Tr. 5:16—21). Mr. Till also mentioned his concern over
Mahoney’s potential involvement in other civil rights cases involving the
City of Bayonne and an indictment against an officer of the Bayonne PD
4
for civil rights violations. (Id. 6:2—7:21). Specifically, Mr. Till spoke of
“broad-based allegations of an environment of civil rights violations in
the City of Bayonne and its police department,” as evidenced by these
cases. (Id. 7:19—2 1). Mr. Silberman responded to these concerns by
pointing out that he was actually counsel to the plaintiff in one of these
cases and could represent to the Court that Mahoney was in no way
involved. (Id. 8:1—10). To this, Mr. Till replied that he was still concerned
that Mahoney might be involved in a future case based on the “culture of
behavior in the Bayonne police department.” (Id. 10:2—14).
Having heard the parties’ arguments, Judge Hammer denied Mr.
Till’s request to stay this civil litigation. (See id. 11:2—12:15; Order, ECF
No. 131). Judge Hammer noted that “the only criminal investigation that
anybody was actually aware of has since now been verified by the Civil
Rights Division to have been closed,” and that the parties had no
knowledge of any active investigation by the USAO. (Id.). As to Mr. Till’s
more general concerns about other civil cases and the culture of behavior
by the Bayonne PD, Judge Hammer reasoned that “if [he] stayed the
litigation because of the mere threat” of a lawsuit involving Mahoney,
then he would essentially have to stay the current case until the statute
of limitations had run on any potential criminal offenses. (Id.). Judge
Hammer concluded that there was no basis to believe any agency of the
Mr. Till was referring to the current civil rights lawsuit by Brandon and
Kathy Walsh against the City of Bayonne, officers of the Bayonne Police
Department, and John Does 1—25, pending before Judge Katharine S. Hayden
of this district (Civ. No. 14-7186 (KSH-CLW)), as well as the criminal civil rights
case against Officer Domenico Lillo that is pending before this Court (Grim. No.
15-0043 (1(M)). Mr. Till also referred to a case pending against a defendant
named “Johnson.” (Feb. 9, 2015 Tr. 9: 13—21).

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federal government was conducting an investigation into Mahoney or the
incident giving rise to this litigation.
Mahoney now appeals Judge Hammer’s order denying his request
for a stay of litigation. (ECF No. 134).
II.

DISCUSSION
a. Standard of Review

The standard of review of a magistrate judge’s report and
recommendation as to dispositive matters is de novo. As to a non
dispositive ruling, however, review is more deferential. Pursuant to
Federal Rule of Civil Procedure 72(a), “a district court may reverse a
magistrate judge’s determination of a non-dispositive motion only if it is
‘clearly erroneous or contrary to law.” See also 28 U.S.C.

§ 636; L. Civ.

R. 72.1(c)(1)(A); Haines v. Liggett Group, 975 F.2d 81, 92 (3d Cir. 1992);
Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986).
Moreover, as to a “discretionary matter.

.

.

courts in this district have

determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.” Halsey v. Pfezffer, No. 09-1138, 2010 WL
3735702, at *1 (D.N.J. Sept. 17, 2010) (internal quotations and citation
omitted); see also Cooper Hospital/Univ. Med. Ctr. v. Sullivan, 183 F.R.D.
119, 127 (D.N.J. 1998); Kresej7cy v. Panasonic Commc’ns & Sys. Co., 169
F.R.D. 54, 64 (D.N.J. 1996).
Ultimately, however, the standard of review matters little. I have
carefully reviewed the transcripts of the five proceedings before Judge
Hammer on the issue of the stay (ECF No. 134-2, Ex. B—F), and find
myself in agreement with his ruling on February 9, 2015. Even reviewing
the decision de novo as a report and recommendation, I would adopt and
affirm his well-reasoned decision, which was entered after thorough
review of the facts.

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b. Review of Judge Hammer’s Order
Courts consider the following factors in deciding whether to stay
civil proceeding in favor of a pending criminal matter:
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 interest
in proceeding expeditiously weighed against the prejudice to
plaintiff caused by a delay; 4) the private interests of and
burden on defendants; 5) the interests of the court; and 6)
the public interest.
Walsh Sec., Inc. v. Cristo Prop. MgmL, Ltd., 7 F. Supp. 2d 523, 527
(D.N.J. 1998).
As Rios points out, the stay analysis begins and ends with the first
two factors. (Rios Opp. Br. 4, ECF No. 140). Mahoney cannot point to any
current ongoing criminal investigation—much less an actual
indictment—involving him, the other defendants, or the incident
generally. In short, there is no pending parallel proceeding, and therefore
no basis to order a stay.
Mahoney argues that Judge Hammer “failed to take into account
the clear and unmistakable uncertainty surrounding any investigation by
Federal agencies within the District of New Jersey, such as the Federal
Bureau of Investigation or the United States District Attorney for the
District of New Jersey.” (Mahoney App. Br. 12—13, ECF No. 134-1).
Specifically, Mahoney states that “Counsel for the Plaintiff has otherwise
repeatedly asserted (both on and off the record) that an investigation was
under way by the [FBIj and/or the [USAOI.

.

.

.

Since then, there has

been absolutely no substantive evidence or assurances from the [FBI or
USAO} that a criminal investigation is closed.” (Id. 13). In so arguing,
Mahoney misstates the burden in this case. It is not the DOJ’s, the
USAO’s, the FBI’s, or Rios’s burden to dispel Mahoney’s “uncertainty”
about whether there is a criminal investigation pending. Rather, it is

10

matter,
Mahoney’s burden to demonstrate the existence of some criminal
ey
pending which this Court should stay the current litigation. Mahon
closed.
has not done so. The DOJ has confirmed that its investigation is
itself of
(DOJ Letter Oct. 3, 2015, ECF No. 116-1). The USAO has availed
(Feb. 9,
its policy to not reveal whether or not an investigation is ongoing.
2015
2015 Tr. 4:25—5:11; see Landis Jan. 26, 2015 Letter; Till Jan. 26,
Letter).
Mahoney’s only basis for believing that the USAO may be
and
investigating the incident are (1) subpoenas to the Bayonne police
Reply
fire departments by the USAO on or about August 2013 (Mahoney
Rios’s
Br. 4, ECF No. 142 (citing Davie Cert ¶4)); and (2) statements by
and
counsel at conferences on November 12, 2012, September 17, 2013,
and
October 11, 2013 that an FBI investigation was ongoing, that Rios
ent was
his counsel had been interviewed by the FBI, and that an indictm
5
“imminent” (Id. 3—4 (citing Davie Cert. ¶ 10; Davie 2nd Cert. ¶3; Davie
2—5,
7
6
3rd Cert. ¶j7—8; Silberman Cert. ¶3; Rios Opp. to Mot. to Seal.
of an
ECF No. 64)). It is telling that there have been no additional signs
hi,
FBI or USAO investigation since 2013. Also, Rios’s counsel, Mr. Abous
confirmed that FBI Agent Laura Rugler told his co-counsel, Mr.
Silberman, “that the FBI completed their investigation and were not
moving forward with any charges against the defendants.” (Sept. 22,
be
2014 Tr. 11:11—18). Moreover, as Judge Hammer noted, it would
DOJ
unusual for the USAO to institute a civil rights prosecution after the
had concluded that the circumstances did not warrant such a
The second Certification of Kenneth P. Davie, dated October 22, 2013,
submitted in further support of the defendants’ motion to seal; ECF No. 65
Davie 2nd Cert.
The third Certification of Kenneth P. Davie, dated November 12, 2013,
submitted in further support of the defendants’ motion to stay; ECF No. 72 =
Davie 3rd Cert.
The Certification of Joel Silberman, dated October 10, 2013, submitted
in opposition to defendants’ motion to seal; ECF No. 64-1 = Silberman Cert.
11

prosecution. (Dec. 10, 2015 Tr. 8:21—9:9).
Mahoney asks this Court to stay this case pending assurances that
will likely never come. As Judge Hammer noted, the most that the FBI or
the USAO could ever say is that their investigation is closed for now.
(Sept. 22, 2014 Tr. 14:19—25). And the closure of one agency’s
investigation would not absolutely rule out another agency’s
commencement of its own investigation. (Id. 15:19—24). Mahoney will
always face the choice of either testifying or asserting his Fifth
Amendment right to remain silent—at least until the statute of limitations
on any potential criminal offense relating to this incident runs out.
I also concur with Judge Hammer’s denial of Mahoney’s request for
a “Rule 104 hearing” to question FBI Agents K.I. Davis and Laura Rubler
regarding the status of any potential investigation. (Mahoney App. Br. 14)
Such a hearing would be fruitless. However unsatisfied Mahoney may be
with the responses of the FBI and the USAO (See Landis Jan. 26, 2015
Letter, ECF No. 127; Till Jan. 26, 2015 Letter, ECF No. 128), there is no
indication that any more information is available from the agencies.
In sum, I find no clear error of fact, error of law, abuse of
discretion, or error of any kind in Judge Hammer’s well-reasoned ruling,
which I affirm and adopt.
III.

CONCLUSION

Accordingly, based on this Opinion and the reasons expressed by
Judge Hammer, Mahoney’s appeal (ECF No. 134) of Judge Hammer’s
order is DENIED.

Kevin McNulty
United States District Judge

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