Mahajni v. Milwaukee County et al

Filing 54

ORDER signed by Chief Judge Pamela Pepper on 3/10/2025 GRANTING 42 defendants' motion to certify issue for interlocutory appeal. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARWAY MAHAJNI,
Plaintiff,
Case No. 24-cv-416-pp
v.
DEPUTY VU DO, DEPUTY SCOTT WOIDA,
JOHN DOE DEFENDANTS 1-5
and ABC INSURANCE COMPANY,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO CERTIFY ISSUE FOR
INTERLOCUTORY APPEAL (DKT. NO. 42)

On November 27, 2024, the defendants filed a motion, dkt. no. 42,
asking the court to certify the following issue for interlocutory appeal:
For purposes of the statute of limitations, did Plaintiff’s 42 U.S.C.
§ 1983 claims against Defendants Do and Woida accrue:
(1) at the time Plaintiff’s underlying criminal convictions were
invalidated and vacated on March 11, 2020; or
(2) at the time Plaintiff’s underlying criminal case was dismissed
with prejudice on October 24, 2022.
Id. The court will grant the motion.
I.

Background
On August 6, 2024, the plaintiff filed a complaint raising claims against

Milwaukee County, Deputy Vu Do, Deputy Scott Woida, former Sheriff David
Clarke, John Doe Defendants 1-5 and ABC Insurance Company. Dkt. No. 1 at
¶¶9-14. Broadly, the plaintiff alleges that the bailiffs at his criminal trial—
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Deputies Do and Woida—improperly instructed jurors that “they must reach a
unanimous verdict and cannot be deadlocked on any counts.” Id. at ¶¶1-2
(emphasis in original). The plaintiff explains that after the deputies’ wrongful
interference, the jury found him guilty of one count of kidnapping and one
count of 2nd degree sexual assault. Id. at ¶¶30-40. The trial court sentenced
the plaintiff; on appeal, the Wisconsin Court of Appeals remanded the case so
that the trial court could conduct an evidentiary hearing to determine whether
the jury was prejudiced by extraneous information. Id. at ¶¶72, 77, 89.
Because of testimony presented at the evidentiary hearing, “[t]he government
conceded and the trial court concluded on March 11, 2020 that ‘this court
must find that at least one juror received prejudicial extraneous information
and that a new trial is required as a remedy.’” Id. at ¶93. On March 11, 2020,
the state trial court vacated the plaintiff’s two convictions and the plaintiff
entered a not guilty plea. Id. at ¶¶93-94. “On October 24, 2022, the State noted
that they would be unable to meet their burden of proof against [the plaintiff],
and then the state moved to dismiss all counts against [the plaintiff].” Id. at
¶97. “Based on the State’s motion, the court dismissed all of the criminal
charges against [the plaintiff] with prejudice.” Id.
After answering the federal complaint, dkt. no. 16, the defendants filed a
motion for judgment on the pleadings, dkt. no. 20. The defendants argued that
(1) all the plaintiff’s claims are barred by the relevant statute of limitations, (2)
Deputy Woida is entitled to absolute immunity, (3) Deputies Do and Woida are
entitled to qualified immunity, (4) the plaintiff failed to comply with the notice
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requirements of Wis. Stat. §893.80(1d), (5) the plaintiff failed to state a Monell
claim and (6) former Sheriff Clarke is not a proper party. Dkt. No. 21 at 4-22.
On November 20, 2024, this court held a hearing, granting in part and
denying in part the motion for judgment on the pleadings. Dkt. Nos. 38-39. The
court granted the defendants’ motion to the extent that it dismissed the
plaintiff’s state law claims, his 42 U.S.C. §1983 municipal liability claims
against the City of Milwaukee and David Clarke and his 42 U.S.C. §1983
individual capacity claims against David Clarke. Id. The court denied the
defendants’ motion regarding the statute of limitations, absolute immunity on
behalf of defendant Do and qualified immunity on behalf of defendants Do and
Woida.1 Id.
Regarding the statute of limitation issue, the court observed that “both
parties agree that the Heck doctrine in some way or another tolled the accrual
of the plaintiff's claims, but they disagree about when that tolling occurred, or,
I suppose, more to the point, when it ended.” Dkt. No. 47 at 20 (citing Heck v.
Humphrey, 512 U.S. 477 (1994)). The court explained that the defendants
contend that the plaintiff’s claim began accruing on March 11, 2020 (when the

1 The court determined that the plaintiff sufficiently had alleged that defendant

Do violated the clearly established right to have a jury free of prejudicial
extraneous information. Dkt. No. 47 at 37. But the court observed that the
qualified immunity question was “a little more complicated” with defendant
Woida because “neither party separated out the [failure to intervene]
allegations against Woida from the allegations against Do.” Id. at 38.
Ultimately, the court decided not to extend qualified immunity to defendant
Woida, but clarified that it made that decision without prejudice so that the
defendants could raise the argument at the summary judgment stage. Id. at
39-40.
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trial court vacated the plaintiff’s convictions) while the plaintiff argued that his
claim began accruing on October 24, 2022 (when the state conceded it did not
have sufficient evidence to convict the plaintiff and the trial court dismissed all
of the criminal charges against the plaintiff with prejudice). Id. at 20-21. The
court opined that it was “not entirely . . . clear that Heck answers the question
here.” Id. at 23. The court stated, “I don’t get a whole lot more guidance from
the more recent cases, the McDonough decision and—and the Seventh Circuit’s
decision in Camm, I’m not entirely sure that they’re any more helpful.” Id. at 24
(citing McDonough v. Smith, 588 U.S. 109 (2019); Camm v. Faith, 937 F.3d
1096 (7th Cir. 2019)). But the court opined that the instant case required “a
more practical and pragmatic determination[,]” before explaining:
If there were a parallel civil lawsuit going on at the same time,
and let’s say the defendants in the civil lawsuit wanted, for example,
to get the plaintiff's testimony about his injuries, well, he’d have the
right to plead the Fifth, and so the civil suit wouldn’t be going
anywhere. Maybe there would be evidence, other evidence that the
defendants in the civil lawsuit would seek that could cause issues
for the plaintiff in the criminal lawsuit.
I agree that—that, you know, the same issue wouldn’t be
coming up in the criminal lawsuit, that is, an issue of bailiffs
allegedly behaving improperly with the jury, but from a practical
standpoint, I don’t see how those two suits could have run parallel
to each other without in some way or another endangering the
plaintiff’s trial rights in the criminal case and pretty much requiring
the civil case probably to be stayed until the civil case was resolved.
Id. at 24-26. The court stated that “[s]ome of this circles back to the policy that
underlies the Heck doctrine,” and noted that, “[i]n McDonough, the Supreme
Court was talking about the Heck doctrine, and it said that forcing a criminal
defendant to kind of hurry up and file their 1983 in federal court before all the
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criminal proceedings had finished on the state court level would expose a
defendant to risk.” Id. at 26. After reading several quotations from the
McDonough decision, the court held the following:
Now, again, I don’t think that this—the plaintiff's claim here
necessarily questioned the validity of the retrial in the state case,
but I do think that this issue of sort of filing a civil case that could
be dormant could be unripe due to a risk that it would impede the
plaintiff’s rights in his civil case—in his criminal case in state court
applies here.
So I think even if Heck itself is not fully applicable or on all
fours with the situation that we have here, I think that some of the
policy ideas that underlie Heck, that underlie McDonough, counsel
in favor of my finding that the plaintiff's claims accrued in October
of 2022 when finally all of the criminal charges against him were
dismissed by the Milwaukee County Circuit Court with prejudice.
It was at that point on October 24th of 2022 that the plaintiff
knew that he no longer had Fifth Amendment concerns, he no longer
had Sixth Amendment concerns, and he could bring a 1983 claim
without fear that that claim would somehow impinge on his criminal
rights or that he’d be required to give testimony or produce discovery
that could impinge on his criminal rights.
Id. at 27-28. For these reasons, the court denied the defendants’ motion for
judgment on the pleadings as to their statute of limitation argument. Id. at 28.
On November 27, 2024, the defendants filed a notice of interlocutory
appeal, dkt. no. 44, and a motion to certify issue for interlocutory appeal, dkt.
no. 42. In their Seventh Circuit Rule 3(c) docketing statement, the defendants
explained that because the denial of qualified immunity is a “final” order under
28 U.S.C. §1291, they are “appeal[ing] the denial of qualified immunity on the
claims against Deputy Woida for alleged violations of Plaintiff’s Fourth, Sixth,
and Fourteenth Amendment rights[.]” Dkt. No. 45 at 2-3. The defendants also
stated that they are “seek[ing] interlocutory review of the denial of judgment as
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a matter of law based on the statute of limitations, which is subject to a motion
to certify in the district court.” Dkt. No. 45 at 3. As stated above, in their
motion to certify, the defendants explained that they are seeking to certify the
following issue for interlocutory appeal:
For purposes of the statute of limitations, did Plaintiff’s 42 U.S.C.
§ 1983 claims against Defendants Do and Woida accrue:
(1) at the time Plaintiff’s underlying criminal convictions were
invalidated and vacated on March 11, 2020; or
(2) at the time Plaintiff’s underlying criminal case was dismissed
with prejudice on October 24, 2022.
Dkt. No. 42. The plaintiff opposes the defendants’ motion to certify the statute
of limitations issue for interlocutory appeal. Dkt. No. 52.
II.

Legal Standard
Interlocutory appeal is allowed by 28 U.S.C. §1292(b), which provides:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
such order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, [s]he shall so state in writing
in such order.

28 U.S.C. §1292(b). The Seventh Circuit has explained that “[t]here are four
statutory criteria for the grant of a section 1292(b) petition to guide the district
court: there must be a question of law, it must be controlling, it must be
contestable, and its resolution must promise to speed up the litigation.”
Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000)
(emphasis in original). “There is also a nonstatutory requirement: the petition
must be filed in the district court within a reasonable time after the order
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sought to be appealed.” Id. at 675-76 (emphasis in original) (citing Richardson
Elec., Ltd. v. Panache Broadcasting of Pa., Inc., 202 F.3d 957, 958 (7th Cir.
2000)). “Unless all these criteria are satisfied, the district court may not and
should not certify its order to [the appellate court] for an immediate appeal
under section 1292(b).” Id. at 676 (emphasis in original). The Seventh Circuit
has “emphasize[d] the duty of the district court and of [the Seventh Circuit] as
well to allow an immediate appeal to be taken when the statutory criteria are
met . . . .” Id. at 677.
III.

Discussion
Although the plaintiff opposes the defendants’ motion to certify the

statute of limitation question, he concedes that the defendants have satisfied
several of §1292(b)’s requirements. See Dkt. No. 52. The plaintiff concedes that
the defendants filed their petition within a reasonable time. Id. at 3-4. The
plaintiff concedes that the statute of limitation issue presents a controlling
question of law, which may materially advance the ultimate termination of the
litigation. Id. at 5-6, 13-14. The parties dispute only whether the statute of
limitation issue is “contestable.” Id. at 6-13.
A question of law is “contestable” if “there is substantial ground for
difference of opinion.” 28 U.S.C. §1292(b). “Courts have differed as to the
degree of ‘contest’ required to make an issue ‘contestable’ under § 1292(b).”
F.D.I.C. v. Mahajan, Case No. 11 C 7590, 2013 WL 3771419, at *4 (N.D. Ill.
July 16, 2013). Some courts have determined that “the relevant question is not
whether there exists controlling judicial precedent, but rather whether ‘other
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courts have adopted conflicting positions regarding the issue of law proposed
for certification.’” Anderson v. Foster, Case No. 13-CV-256, 2013 WL 4523228,
at *3 (E.D. Wis. Aug. 27, 2013) (quoting In re Bridgestone/Firestone, Inc. Tires
Products Liab. Litig., 212 F. Supp. 2d 903, 909-10 (S.D. Ind. 2002)); see also
Marshall v. Amsted Rail Co., Inc., Case No. 10 C 011, 2011 WL 5513204, *3
(S.D. Ill. Nov. 11, 2011) (finding a question “contestable” because “various
federal courts (district and appellate) have followed different paths and reached
opposite conclusions” on an issue). Other courts have concluded that an issue
is “contestable” for purposes of §1292(b) “if there is a ‘difficult central question
of law which is not settled by controlling authority,’ and a ‘substantial
likelihood’ exists that the district court’s ruling will be reversed on appeal.” City
of Joliet v. Mid–City Nat’l Bank, Case No. 05 C 6746, 2008 WL 4889038, *2
(N.D. Ill. June 13, 2008) (quoting In re Brand Name Drugs, 878 F. Supp. 1078,
1081 (N.D. Ill. 1995)).
The defendants argue that the limitation issue is contestable because it
“presents a matter of first impression within the alleged factual context of
Plaintiff’s Complaint,” “conflicting authority on the issue exists” and there is
“apparent confusion posed by this question of law[.]” Dkt. No. 53 at 4. The
court will address these in turn.
Although it appears that there is not controlling authority addressing
this specific set of facts, that does not necessarily render the issue
“contestable.’ Courts in this circuit have held that just because an issue is a
matter of first impression does not mean that there is a substantial ground for
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differences of opinion. See Manitowoc Cranes LLC v. Sany Am. Inc., Case No.
13-C-677, 2018 WL 582334, at *2 (E.D. Wis. Jan. 29, 2018) (“The fact that this
is an issue of first impression and has not been addressed in this or any other
circuit in itself does not demonstrate a substantial ground for difference of
opinion.”); Kisting v. Gregg Appliances, Inc., Case No. 16-CV-141, 2017 WL
44832, at *3 (E.D. Wis. Jan. 4, 2017) (“The fact that there is no Seventh Circuit
precedent on the issue, however, does not establish substantial ground for
difference of opinion.” (citing Anderson, 2013 WL 4523228, at *3)); Hollinger
Intern., Inc. v. Hollinger, Inc., Case No. 04-C-0698, 2005 WL 327058, at *3
(N.D. Ill. Feb. 3, 2005) (“The movant thus may not prevail by simply showing a
‘lack of judicial precedent’ or that the issue is one of first impression.”).
Although the novelty of an issue may be a factor in demonstrating the
contestability of an issue, novelty alone is not dispositive. See Aspen Am. Ins.
Co. v. Charmoli, Case No. 23-CV-0610, 2023 WL 4562548, at *3 (E.D. Wis.
July 17, 2023) (observing that “cases treat novelty as a factor bolstering the
‘substantial likelihood’ of reversal on appeal” before determining that “[j]ust
because an issue is novel, though, does not necessarily mean it is contentious”
(emphasis in original)). The defendants must demonstrate there is a substantial
ground for differences of opinion.
Although the defendants have not presented clearly conflicting authority,
the court believes that the defendants’ arguments sufficiently demonstrate the
confusion posed by the limitation question. Boone v. Ill. Dep’t of Corr., 71 F.4th
622, 625 (7th Cir. 2023) (determining that a question of law was contestable
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based on the district court’s comments showing “the confusion posed by the
question presented to us for review”). As the defendants detail in their briefing,
the Heck doctrine primarily has been applied to §1983 claims that imply the
invalidity of a conviction or sentence, like malicious prosecution claims or
fabrication of evidence claims. Dkt. Nos. 43 at 17-20; 53 at 8-13. In its oral
ruling, the court acknowledged that the current case does not fit that typical
mold of a Heck case:
I—I have to confess, I’m—I’m really not entirely—entirely clear
that Heck answers the question here. You know, Heck—Heck comes
up most frequently in circumstances where the—the plaintiff is
trying in some way or another to use a civil lawsuit, a 1983 lawsuit,
to do an end run around what he or she fears will be an unsuccessful
motion to reconsider or an unsuccessful appeal in the state court.
And in those cases we apply that sort of time worn standard in Heck
that says that if a decision in the civil case would somehow invalidate
a conviction in the criminal case, then the Heck bar applies.
That clearly is not the case here. The defendants correctly
point out that if on March 12th the plaintiff had filed a lawsuit
making the claims that it make[s]—that he makes here against Do
and Woida and there had been a decision that Do and Woida violated
his constitutional rights in the way they behaved with the jury, that
wouldn’t have invalidated a second—a conviction that might’ve
resulted from a second trial.
Dkt. No. 47 at 23-24 (emphasis added). Despite these observations, the court
determined that the “practical and pragmatic” concerns underlying Heck and
its progeny called for the court to apply the favorable-determination rule to the
current case. Id. at 24-28. But the court acknowledges that there may be
substantial ground for differences of opinion as to how courts may address
these practical and pragmatic concerns. See Towne v. Donnelly, 44 F.4th 666,
674 (7th Cir. 2022) (“We agree with Mr. Towne that many of the practical
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concerns expressed in McDonough, apply also to First Amendment retaliatory
prosecution claims that challenge ongoing state prosecutions[;] [n]evertheless,
we are not convinced that these interests justify extending the favorabletermination requirement to retaliatory prosecution claims arising under the
First Amendment.” (emphasis added)). Because, in this court’s view, the legal
question posed by the unique facts of the current case is not clearly answered
by Heck or its progeny, the court concludes that the issue is “contestable.”
Because the court finds that the defendants have satisfied all of
§1292(b)’s requirements, the court will grant their motion.
IV.

Conclusion
The court GRANTS the defendants’ motion to certify issue for

interlocutory appeal. Dkt. No. 42.
Dated in Milwaukee, Wisconsin this 10th day of March, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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