Moon v. Fischer et al

Filing 90

ORDER AND ENTRY: (1) STAYING THIS CASE PENDING THE ENTRY OF JUDGMENT IN PLAINTIFFS CRIMINAL CASE CURRENTLY PENDING IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI; (2) ORDERING PLAINTIFF TO NOTIFY THE COURT WITHIN 30 DAYS OF THE ENTRY OF JUDGMENT IN THE MISSOURI CRIMINAL CASE; (3) DENYING WITHOUT PREJUDICE TO REFILING DEFENDANTS MOTIONS FOR JUDGMENT ON THE PLEADINGS (DOCS. 45 , 85 ); (4) DENYING AS MOOT DEFENDANTS MOTION TO STAY DISCOVERY (DOC. 64 ); (5) GRANTIN G PLAINTIFFS MOTION FOR EXEMPTION FROM THE REGULAR MAIL SERVICE REQUIREMENT (DOC. 72 ); (6) DENYING PLAINTIFFS MOTION FOR THE APPOINTMENT OF COUNSEL (DOC. 89 ) WITHOUT PREJUDICE TO REFILE; AND (7) DIRECTING THE CLERK TO ADMINISTRATIVELY PROCESS TH IS CASE PENDING FURTHER ORDER OF THE COURT FOLLOWING THE ORDERED STAY. Signed by Magistrate Judge Michael J. Newman on 10/6/2017. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DARNELL W. MOON,
Plaintiff,

Case No. 3:15-cv-274

vs.
SHERIFF GENE FISCHER, et al.,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendants.
______________________________________________________________________________
ORDER AND ENTRY: (1) STAYING THIS CASE PENDING THE ENTRY OF
JUDGMENT IN PLAINTIFF’S CRIMINAL CASE CURRENTLY PENDING IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI;
(2) ORDERING PLAINTIFF TO NOTIFY THE COURT WITHIN 30 DAYS OF THE
ENTRY OF JUDGMENT IN THE MISSOURI CRIMINAL CASE; (3) DENYING
WITHOUT PREJUDICE TO REFILING DEFENDANTS’ MOTIONS FOR JUDGMENT
ON THE PLEADINGS (DOCS. 45, 85); (4) DENYING AS MOOT DEFENDANTS’
MOTION TO STAY DISCOVERY (DOC. 64); (5) GRANTING PLAINTIFF’S MOTION
FOR EXEMPTION FROM THE REGULAR MAIL SERVICE REQUIREMENT (DOC.
72); (6) DENYING PLAINTIFF’S MOTION FOR THE APPOINTMENT OF COUNSEL
(DOC. 89) WITHOUT PREJUDICE TO REFILE; AND (7) DIRECTING THE CLERK
TO ADMINISTRATIVELY PROCESS THIS CASE PENDING FURTHER ORDER OF
THE COURT FOLLOWING THE ORDERED STAY
______________________________________________________________________________
This is a pro se civil rights case in which Plaintiff Darnell Moon alleges claims under 42
U.S.C. § 1983. There are a number of pending motions in this case, namely: (1) Defendants’
motion for judgment on the pleadings (doc. 45), to which Moon filed a memorandum in
opposition (doc. 51); (2) Defendants’ motion to stay discovery pending a ruling on the motion
for judgment on the pleadings (doc. 64), to which Moon filed a memorandum in opposition (doc.
65); (3) Moon’s motion for exemption from the regular mail service requirement (doc. 72); (4)
Defendants’ motion seeking an order on its motion for judgment on the pleadings (doc. 85); and
Moon’s motion to appoint counsel (doc. 89).

As previously noted by the undersigned, on January 19, 2017, Moon was indicted in the
United States District Court for the Eastern District of Missouri on six separate counts of fraud in
violation of 18 U.S.C. §§ 1341 and 1343. United States v. Moon, No. 1:17-cr-5, ECF 1 (E.D.
Mo. Jan. 19, 2017). This Court’s review of the docket of that criminal case reveals that the
search warrant at issue in this case is a warrant from which evidence was allegedly acquired
leading, at least in part, to the criminal charges in Missouri. See United States v. Moon, No.
1:17-cr-5, ECF 23 at PageID 64 (E.D. Mo. July 19, 2017). In effect, Moon is asking this Court
to make legal conclusions that are equally at issue in the Missouri criminal case. Where one
asserts a § 1983 or a Bivens “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.” Wallace v. Kato, 549 U.S. 384, 393-94 (2007).
In accordance with this general principle and common practice, the undersigned STAYS
this case pending completion of the criminal proceedings now pending in the Eastern District of
Missouri. Moon is hereby ORDERED to file a notice with this Court advising the Court and
opposing counsel of the entry of judgment in the criminal case (E.D. Missouri Case No. 1:17-cr5) within 30 days of the entry of judgment. Moon is ADVISED that failure to timely file this
notice as ORDERED may result in the dismissal of this case for failure to prosecute.
Because this case is now stayed and the issues presented in Defendants’ motions for
judgment on the pleadings may equally be at issue in the Missouri criminal case, the Court
declines to address Defendant’s motions for judgment on the pleadings at this time and,
accordingly, DENIES such motions (doc. 45, 85) WITHOUT PREJUDICE to refiling
following the conclusion of the stay. Defendants’ motion to stay discovery pending a ruling on
the judgment on the pleadings (doc. 64) is, accordingly, DENIED AS MOOT.
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With regard to Moon’s motion for leave from the requirement of serving all filings in this
case on Defendants by regular mail (doc. 72), the Court GRANTS such motion in light of the
financial hardship such requirement places upon Moon and further, based on the lack of
prejudice to Defendants -- they will receive all filings via the Court’s CM/ECF system.
Finally, for the reasons set forth by the Court previously (see doc. 70), Moon’s motion for
the appointment of counsel (doc. 89) is DENIED.
IT IS SO ORDERED.

Date:

October 6, 2017

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

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