Opinion
00 Civ. 4360 (LAK)(AJP)
October 11, 2000
OPINION AND ORDER
Corporation counsel has moved by letter dated October 5, 2000 to stay this § 1983 action because of a "parallel" state criminal prosecution of Freeman. For the reasons discussed below, the application is DENIED.
In this action, Freeman alleges that a correction officer used excessive force on him and threw away his personal property. (See Dkt. No. 2: Cplt. at ¶ IV.)
Corporation Counsel's October 5, 2000 letter application represents that a criminal proceeding is pending against Freeman charging him with assault, obstructing governmental administration and harassment "stemming from the same incident at issue in the above referenced civil rights action." (Id. at 1.)
In seeking a stay of this action, Corporation Counsel argues that "the outcome of the state criminal court proceeding may be determinative of plaintiff's excessive force claims," and cites "Caridi v. Forte, 967 F. Supp. 97, 100 (2d Cir. [sic — really S.D.N.Y.] 1997)." (10/5/00 Grossman Letter at 2.) The problem with this argument, as would have been obvious to defense counsel if she had cite-checked Caridi, is that the Second Circuit rejected Caridi in Sullivan v. Gagnier, No. 99-7207, 225 F.3d 161, 2000 WL 1180284 (2d Cir. Aug. 21, 2000). In Sullivan, the district court had relied on Caridi, and the Second Circuit "disagree[d] with the precedent on which the district court relied." Sullivan v. Gagnier, 2000 WL 1180284 at *2. The Second Circuit held:
As our brethren in other Circuits have squarely held, the jury's return of a guilty verdict in state court for resisting arrest and/or other offenses such as assault on a police officer does not necessarily preclude a subsequent claim of excessive force in federal court.
* * * *
Therefore, whether or not such a claim is precluded depends on the issues that were actually litigated and necessarily decided in the prior proceedings, and may not be determined a priori. A lawful arrest may be accompanied by excessive force; thus the mere fact of [the civil plaintiff's] convictions for harassment and resisting arrest, is not incompatible with his claim for excessive force.
Id., 2000 WL 1180284 at *2, 4 (citing cases).
See also, e.g., Smith v. Metro North Commuter R.R., 98 Civ. 2528, 2000 WL 1449865 at *3 (S.D.N.Y. Sept. 29, 2000); Perlleshi v. County of Westchester, 98 Civ. 6927, 2000 WL 554294 at *4-5 (S.D.N.Y. April 24, 2000) ("A claim of excessive force charged under Section 1983 is not barred by a subsequent guilty plea or conviction of the charge for which plaintiff was arrested . . .[and] [t]he fact that [plaintiff] has admitted to resisting arrest is not automatically dispositive of his claim that [defendant]'s conduct constituted excessive force."); Smith v. Yonkers Police Dep't, 91 Civ. 3778, 1995 WL 489461 at *3 (S.D.N.Y. Aug. 16, 1995) ("Although plaintiff's conviction for resisting arrest is a factor in determining the acceptable level of force, it does not constitute a per se determination that any amount of force that plaintiff could prove is acceptable.").
The Court, of course, still has discretion to stay a § 1983 action where a criminal proceeding is pending, based on certain factors set out in the case law in this Circuit. See, e.g., Quint v. Freda, 98 Civ. 4825, 1999 WL 65046 at *1-2 (S.D.N.Y. Feb. 11, 1999); SEC v. Pignatiello, 97 Civ. 9303, 1998 WL 293988 at *4 (S.D.N.Y. June 5, 1998); Jackson v. Johnson, 985 F. Supp. 422, 424-25 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.); Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. 268, 269-70 (S.D.N Y 1995) (Kaplan, D.J. Peck, M.J.) ( cases cited therein). Defense counsel did not address these factors and, based on defense counsel's application, the Court sees no reason to stay this action. This Court operates a "rocket docket." Defense counsel has given no indication of where the criminal case is on the state court's calendar or when it is likely to reach trial. Nor is there any information as to the scope of discovery here and how it might overlap with evidence at the criminal trial. Indeed, this seems like a 2-3 witness case: plaintiff and the two individual correction officer defendants. Finally, there is no argument that civil discovery here would interfere with the criminal prosecution. Compare, e.g., Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. at 270; Agran v. City of New York, 95 Civ. 2170, 1996 WL 263023 at *1-3 (S.D.N.Y. May 16, 1996) (action stayed where defendants argued that civil discovery would interfere with criminal proceeding and assistant district attorney who would be representing state in criminal case filed declaration in support of motion); Marria v. Turitto, No. 94 CV 3150, 1995 WL 228379 at *1 (E.D.N.Y. April 11, 1995) (§ 1983 excessive force action stayed where plaintiff's trial on related criminal charges was scheduled to commence within two to three weeks).
In conclusion, defendants' request for a stay is DENIED.
SO ORDERED.