Opinion
No. 00 C 3484
October 16, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff was shot, he claims by defendant, in an incident on June 10, 1999. He sued, alleging excessive force, malicious prosecution, assault and battery, and arrest without probable cause. He had, however, been charged in state court with aggravated assault of a peace officer and unlawful use of a weapon. Plaintiff was acquitted of the aggravated assault charge but he was convicted of unlawful use of a weapon. While that conviction was on appeal he voluntarily dismissed the malicious prosecution and false arrest claims, recognizing that he could not proceed with those claims unless his conviction was reversed.
And it was reversed and remanded for a new trial. That led to defendant moving to vacate the referral to mediation and to stay the proceedings until resolution of the criminal prosecution, resting upon the Younger doctrine as extended in Simpson v. Rowan, 73 F.3d 134 (7th Cir. 1995), cert. denied, 519 U.S. 833 (1996). Plaintiff continues to recognize that the malicious prosecution and false arrest claims raise Younger concerns, and he has not moved to reinstate them. He argues, however, that the excessive force and assault and battery claims do not implicate those concerns, and he wishes to proceed on them. If the criminal case terminated favorably to him prior to trial here, then he could reinstate the dismissed claims, subject to a stipulation that the limitations period would be equitably tolled in the meantime, and that discovery would cover all possible claims.
Plaintiff's suggestion might well have merit if the excessive force claim was that a police officer had, say, beaten him after his arrest, as there would be no disruptive effect upon the state prosecution. But here the amount of force which the defendant could reasonably use may well be impacted by whether or not the plaintiff was armed. There is, therefore, "a potential for parallel proceedings . . .," and in those circumstances the state criminal case has priority. Simpson, supra, at 139 (concurring opinion). The motion is granted.