Sherrod et al v. Williams et al

Filing 39

ORDER AND ENTRY: (1) GRANTING DEFENDANTS' MOTION FOR A STAY (DOC. 34 ); (2) STAYING THE DEPOSITIONS OF DEFENDANTS WILLIAMS AND DARKOW FOR NINETY (90) DAYS; AND (3) SETTING A STATUS CONFERENCE WITH THE UNDERSIGNED ON MARCH 28, 2016 AT 2:30 P.M. Signed by Magistrate Judge Michael J. Newman on 12/31/2015. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TRESSA SHERROD, et al.,
Plaintiffs,

Case No. 3:14-cv-454

vs.
SEAN C. WILLIAMS, et al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.

ORDER AND ENTRY: (1) GRANTING DEFENDANTS’ MOTION FOR A STAY (DOC.
34); (2) STAYING THE DEPOSITIONS OF DEFENDANTS WILLIAMS AND DARKOW
FOR NINETY (90) DAYS; AND (3) SETTING A STATUS CONFERENCE WITH THE
UNDERSIGNED ON MARCH 28, 2016 AT 2:30 P.M.

This 42 U.S.C. § 1983 civil rights case is presently before the Court on the motion for a
stay of discovery filed by Defendants Sean C. Williams (“Williams”) and David M. Darkow
(“Darkow”). Doc. 34. Plaintiffs filed a memorandum in opposition. Doc. 37. Williams and
Darkow filed a reply memorandum. Doc. 38. The undersigned has carefully considered all of
the foregoing, and the motion for stay is ripe for decision.
I.
This civil case arises from the death of John H. Crawford, III (“Crawford”) on August 4,
2014 at a Wal-Mart store in Beavercreek, Ohio. See doc. 1 at PageID 4, 7. On that date,
Defendants Williams and Darkow were police officers with the Beavercreek Police Department.
Id. at PageID 4-5. As alleged by Plaintiffs in the complaint, Crawford was shopping at the WalMart store and, while shopping, picked up an unloaded and unboxed pellet rifle that was for sale
at the store. Id. at PageID 7. Soon thereafter, “Williams and Darkow responded to a 911 caller
who claimed that a black man at the Beavercreek Wal-Mart was pointing a gun at

customers.” Id. Williams and Darkow entered the store and, upon finding Crawford holding the
pellet rifle, Williams shot and killed Crawford. Id. at PageID 8.
Subsequently -- in addition to this civil suit in which Plaintiffs1 assert, among other
causes of action, excessive force claims under 42 U.S.C. § 1983, see doc. 1 at PageID 17 -- the
Ohio Attorney General and the Ohio Bureau of Criminal Investigations investigated the incident
for possible criminal charges. See doc. 34-3 at PageID 213. Following that state investigation, a
Greene County, Ohio Grand Jury declined to issue indictments against Williams or Darkow. Id.
Although no state charges have arisen from the event, documents presented to the Court by
Defendants suggest that an investigation by the United States Department of Justice (“DOJ”)
continues. Id. at PageID 214. Williams and Darkow now move for a stay of discovery that
would delay discovery only as to them until completion of the DOJ investigation. See doc. 34 at
PageID 198.
II.
“[A] district court may stay a civil proceeding during the pendency of a parallel criminal
proceeding” and the court maintains “broad discretion” in so deciding. United States v. Certain
Real Prop. 566 Hendrickson Blvd., Clawson, Oakland Cnty., Mich., 986 F.2d 990, 997 (6th Cir.
1993) (citation omitted); see also F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 627 (6th Cir.
2014). In considering requests for a stay during the pendency or impendency of criminal
proceedings, courts must be cognizant that “simultaneous criminal and civil cases involving the
same or closely related facts may give rise to Fifth Amendment concerns sufficient to warrant a
stay of the civil proceedings.” Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 (W.D. Mich. 2007)

Plaintiff Tressa Sherrod (“Sherrod”) is the Executrix of decedent’s estate. Doc. 1 at PageID 1.
Plaintiff John Crawford, Jr. is decedent’s father. Id. Plaintiff LeeCee Johnson is decedent’s mother. Id.
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(citations omitted). Even so, “[a] stay of a civil case is an extraordinary remedy that should be
granted only when justice so requires.” Id. (citations omitted).
In determining whether justice requires a stay of proceedings, courts examine “the
specific circumstances [of a case], taking into account the competing interests involved.” Id. In
addition to “the extent to which the defendant’s [F]ifth [A]mendment rights are implicated[,]”
district courts should also consider the following factors:
1) the extent to which the issues in the criminal case overlap with those
presented in the civil case; 2) the status of the case, including whether the
defendants have been indicted; 3) the private interests of the plaintiffs in
proceeding expeditiously weighed against the prejudice to plaintiffs
caused by the delay; 4) the private interests of and burden on the
defendants; 5) the interests of the courts; and 6) the public interest.
F.T.C., 767 F.3d at 627.

“[T]he strongest case for deferring civil proceedings until after

completion of criminal proceedings is where a party under indictment for a serious offense is
required to defend a civil or administrative action involving the same matter.” Sec. & Exch.
Comm’n v. Dresser Indus., Inc., 628 F.2d 1368, 1375-76 (D.C. Cir. 1980).
Here, the undersigned concludes that a limited, 90 day stay with regard to the
depositions2 of Williams and Darkow is appropriate. With regard to the third, fourth, fifth and
sixth factors above, the Court notes that the August 31, 2016 discovery deadline agreed to by the
parties is approximately nine months away. See doc. 21. Therefore, such a short, limited stay
does not significantly impede upon Plaintiffs’ interests in expeditiously prosecuting this case.
Plaintiffs can still engage in other discovery efforts, including deposing other witnesses. Further,
given that a short stay will not result in a continuance of the current discovery deadline or delay

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While Defendants request a stay as to all discovery as it relates to them, it appears that they have
already produced written discovery and, therefore, it is not clear what other discovery may be required of
Williams and Darkow over which they could assert their Fifth Amendment rights.
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the trial date, neither the Court’s nor the public’s interest will be significantly impacted.
Accordingly, these factors do not weigh against ordering a short, limited stay of discovery.
With regard to the first and second factors, neither Williams nor Darkow have been
indicted, though a federal criminal investigation continues. Absent an indictment, and given the
secrecy of criminal investigations, it is impossible to say with certainty whether issues in the
criminal investigation overlap with the issues in this civil case.

However, given the

circumstances alleged in this civil case, the Court is willing to presume that the issues overlap
significantly.

The Court also notes the seriousness of the potential penalties should an

indictment issue charging Williams and/or Darkow with depriving Crawford of his civil rights
under the color of law. See 18 U.S.C. § 242 (stating that, “if death results from the acts
committed in violation of this section[,]” such a crime is punishable by imprisonment “for any
term of years or for life, or both, or . . . death”).
Further, while the Court is cognizant that requests for “a stay [are] strongest where the
defendant has already been indicted,” and that “pre-indictment requests for a stay . . . are usually
denied[,]” the Court notes that “a stay should not be categorically denied solely because the
defendant has not yet been indicted.” Chao, 498 F. Supp.2d at 1037-38. In fact, stays of
discovery have been granted in instances where “the Government is conducting an active parallel
criminal investigation.” Walsh Sec. Inc. v. Cristo Mgmt, Ltd., 7 F. Supp. 2d 523, 527 (D.N.J.
1998). Recently, Chief Judge Oliver in the Northern District of Ohio granted a limited stay
under similar circumstances. See Winston v. City of Cleveland, No. 1:14-cv-2670, doc. 33 (N.D.
Ohio June 1, 2015).

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III.
Accordingly, the Court GRANTS Defendants’ motion for a stay (doc. 34) and STAYS
only the depositions of Williams and Darkow for ninety (90) days. Prior to expiration of the
stay, Defendants may move for an extension. This case is set for a telephone status conference
before the undersigned on March 28, 2015 at 2:30 p.m. Counsel shall call: 1-877-336-1839,
enter access code 2725365, security code 123456, and wait for the Court to join the conference.
IT IS SO ORDERED.

Date:

December 31, 2015

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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