Swink v. Montgomery County Board of Commissioners, et al.
DECISION AND ENTRY: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR A STAY OF DISCOVERY (DOC. 19); AND (2) ORDERING A LIMITED STAY OF DISCOVERY WITH REGARD TO DEFENDANT JUDITH L. SEALEY FOR NINETY (90) DAYS. Signed by Magistrate Judge Michael J. Newman on 5/31/2017. (dm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:16-cv-392
MONTGOMERY COUNTY BOARD
OF COMMISSIONERS, et al.,
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
DECISION AND ENTRY: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR A STAY OF DISCOVERY (DOC. 19); AND
(2) ORDERING A LIMITED STAY OF DISCOVERY WITH REGARD TO
DEFENDANT JUDITH L. SEALEY FOR NINETY (90) DAYS
This 42 U.S.C. §1983 civil rights case is before the Court on the motion to stay discovery
filed by Defendants Sheriff Phil Plummer, Judith L. Sealey, Chuck Crosby, Scott Landis, and the
Montgomery County, Ohio Board of County Commissioners.
Plaintiff filed a
memorandum in opposition. Doc. 21. Thereafter, Defendants filed a reply memorandum. Doc.
23. After briefing the motion, the parties filed notices of supplemental facts. Docs. 25, 26. The
Court heard oral argument, on the merits of the motion, on May 30, 3017. Defendants’ motion is
now ripe for decision.1
This case arises from an incident that occurred at the Montgomery County, Ohio Jail
(“Jail”) on November 15, 2015. Doc. 1 at PageID 3. On that date, Plaintiff Amber Swink was
arrested and placed into the custody of Defendant Phil Plummer, the Montgomery County
Under S.D. Ohio Local Rule 37.1, the Court can address discovery issues informally with the
parties so as to minimize extensive briefing avoid delays in the discovery process. The Court notes that
the parties in this case did not contact the undersigned in advance of filing this discovery motion.
Sheriff, at the Jail. Id. at PageID 3-4. Plaintiff was allegedly intoxicated and belligerent. Id. at
PageID 4. As a result of her belligerence, Plaintiff was physically restrained in handcuffs and
leg-restraints. Id. at PageID 4.
Despite being restrained, Plaintiff allegedly remained belligerent while at the Jail and
Defendant Sealey purportedly pepper sprayed Plaintiff in an effort to stop her disruptive
behavior. Id. Thereafter, Defendant Sealey ordered that Plaintiff be placed in a full restraint
chair. Id. at PageID 4-5. Two corrections officers at the Jail -- who are not parties to this lawsuit
-- complied with Defendant Sealey’s order and Plaintiff remained restrained in the chair in an
isolation room for over an hour-and-a-half.
Thereafter, Plaintiff began yelling and
Defendant Sealey, after warning Plaintiff to stop yelling, allegedly pepper sprayed Plaintiff again
until she became unconsciousness in the restraint chair and required revival by Jail medical
personnel. Id. at PageID 4-5.
Plaintiff alleges that after the incident, Sealey failed to complete a use-of-force report as
required by Jail policy. Id. at PageID 7-8. Further, Defendant Sealey’s superiors, Defendants
Crosby and Plummer -- despite knowing of the incident and Sealey’s failure to complete the
required report -- never demanded a report be completed.
Id. at PageID 7-8.
Defendants, knowing of potential criminal and civil litigation arising from the incident, allegedly
conspired to destroy video and other evidence of the incident. Id. at PageID 8.
Plaintiff now brings this civil rights suit alleging a number of claims against Defendants
Plummer, Sealey and Crosby in their individual and official capacities including, inter alia,
claims of excessive force; maintaining unconstitutional customs, policies and procedures at the
Jail; and failure to supervise and discipline Defendant Sealey. Id. at PageID 10-14. Defendants
seek to stay all discovery in this case pending completion of criminal investigations by the
United States Department of Justice and the City of Dayton. Doc. 19 at PageID 176. In support
of the requested stay of discovery, Defendants argue that, in light of the pending criminal
investigations, they are placed in the position of having to choose between invoking their Fifth
Amendment rights against self-incrimination and prejudice their defense of this civil suit, or
waive their Fifth Amendment privilege against self-incrimination. Id.
With regard to criminal investigations, the Court notes that evidence presented by
Defendants shows that there are potentially three prosecuting authorities who have investigated
the incident: (1) the United States Department of Justice (“DOJ”); (2) the Montgomery County,
Ohio Prosecutor; and (3) the City of Dayton. A grand jury in Montgomery County, Ohio
declined to indict Defendant Sealey. Doc. 25-1 at PageID 243. A subpoena from the United
States Attorney’s Office for the Southern District of Ohio reveals a potential investigation into
the conduct of Defendant Sealey. See doc. 19-1 at PageID 189-90. The City of Dayton may
potentially bring misdemeanor criminal charges arising from the incident, but the information
before the Court again shows that Defendant Sealey is the individual under investigation. Id. at
PageID 185. To date, no criminal charges have been filed against anyone arising from the
incident involving Plaintiff.
“[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)
(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). Notably, “the burden
is on the party seeking the stay to show that there is pressing need for delay, and that neither the
other party nor the public will suffer harm from entry of the [O]rder.” Ohio Envtl. Council v.
U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir. 1977) (brackets added).
Here, there is no pending criminal case at this time.2 The evidence presently before the
Court demonstrates the existence of potential criminal investigations into the conduct of
While requests for “a stay [are] strongest where the defendant has already been indicted,” and
“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
Defendant Sealy only3 -- and there is no significant dispute that such potential investigations
arise from the same facts and circumstances as those presented in this civil case. See doc. 19-1 at
PageID 189 (specifically referencing Defendant Sealey and her use of force on Plaintiff on
November 15, 2015). There is no significant evidence currently before the Court showing that
any other Defendant is under the threat of potential imminent criminal prosecution for events
related to the incident at issue herein. Accordingly, in an effort to limit the scope of a potential
stay, the Court finds, in weighing all of the required factors, that Defendants fail to meet their
burden of showing the need to stay of discovery from Defendants other than Defendant Sealey.
With regard to Defendant Sealey, the undersigned concludes that a limited, 90-day stay
of interrogatories from, and a deposition of, Defendant Sealey is appropriate.4 With regard to the
third, fourth, fifth and sixth factors above, the Court notes that the November 21, 2017 discovery
deadline set by the Court is approximately six months away. See doc. 21. Therefore, such a
short, limited stay does not significantly impede upon Plaintiff’s interests in expeditiously
prosecuting this case. Plaintiff can still engage in other discovery efforts, including gathering
relevant documents and materials from all Defendants, and deposing all witnesses other than
Defendant Sealey. Further, given that a short stay will not result in a continuance of the current
discovery deadline or delay 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
The Court notes evidence presented by Plaintiff -- notably, a statement from Montgomery
County Prosecutor Matias Heck, Jr. -- states that the Dayton Police Department was never tasked with
investigating any allegations regarding the destruction of evidence. Doc. 25-1 at PageD 243. No
evidence presently before the Court evidences any criminal investigation into allegations concerning the
alleged destruction of evidence. Therefore, absent evidence of any criminal investigation in this regard,
the Court finds no stay warranted on such basis.
The Court, at this time, finds no need to impose any stay with regard to the production of
documents from Defendants Sealey because she fails show any Fifth Amendment implications arising
from such production. See United States v. Pelto, 941 F.2d 1210 (6th Cir. 1991) (stating that “the Fifth
Amendment does not bar the compelled production of all evidence merely because it is incriminating but
bars only compelled testimonial communication that is incriminating”) (citing Fisher v. United States,
425 U.S. 391, 408 (1975)).
stay of discovery concerning interrogatory responses from, and the deposition of, Defendant
Accordingly, the Court GRANTS IN PART AND DENIES IN PART Defendants’
motion for a stay (doc. 19) and STAYS interrogatory responses and deposition testimony from
Defendant Sealey for ninety (90) days. Prior to expiration of the stay, Defendants may move for
an extension of the stay. In the absence of a motion by Defendants, the stay will automatically
expire after ninety (90) days from the entry of this Order.
IT IS SO ORDERED.
May 31, 2017
s/Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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