Opinion
Civil Action No. 20-cv-01348-CMA-NYW
09-28-2020
ELEKE DAVIS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
This matter comes before this court on Defendant United States of America's ("Defendant" or "Government" or "United States") Motion for Administrative Closure or Stay ("Motion for Administrative Closure") [#28, filed August 26, 2020]; and Plaintiff Eleke Davis's ("Plaintiff" or "Mr. Davis") Motion to Appoint Pro Bono Counsel ("Motion to Appoint Counsel") [#42, filed September 24, 2020]. The undersigned considers the Motions pursuant to 28 U.S.C. § 636(b), the Order of Reference dated August 23, 2020 [#27], and the Memoranda dated August 29, 2020 [#29] and September 25, 2020 [#43], respectively. This court has reviewed the Motions, associated briefing [#41], case file, and applicable case law, and respectfully RECOMMENDS that the Motion for Administrative Closure be GRANTED. Additionally, IT IS ORDERED that the Motion to Appoint Counsel is DENIED.
BACKGROUND
Plaintiff is currently incarcerated in federal prison and brings this action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. See generally [#1]. Specifically, Plaintiff alleges that a corrections officer at the United States Penitentiary in Florence, Colorado ("USP Florence"), negligently permitted another inmate to pass through a metal detector at USP Florence with a makeshift knife on October 28, 2018. [Id. at ¶¶ 1-6]. Plaintiff alleges that the inmate, Maxie Graham ("Mr. Graham"), subsequently attacked Plaintiff in his cell. [Id. at ¶ 7-8]. Mr. Graham died from injuries sustained in the altercation. [Id. at ¶ 8].
Plaintiff filed his pro se Prisoner Complaint against Defendants in the United States District Court for the District of Colorado on May 12, 2020. See generally [id.]. This action was originally assigned to the Honorable Gordon P. Gallagher, who denied Plaintiff's application to proceed in forma pauperis on May 14, 2020. See [#2; #3; #4]. On June 18, 2020, and pursuant to D.C.COLO.LCivR 8.1, this matter was assigned to the Honorable Lewis T. Babcock, who subsequently entered an Order of Reference to Judge Gallagher. [#8; #9]. On June 19, 2020, Judge Gallagher recommended dismissal of Mr. Graham and Correctional Officer Horn as Defendants. [#10]. In an Order dated July 15, 2020, Judge Babcock accepted and adopted Judge Gallagher's Recommendation; dismissed Mr. Graham and Correctional Officer Horn from the action, leaving the United States of America as Defendant; and reassigned this case to the undersigned. [#12].
Because Mr. Davis proceeds pro se, this court affords his papers and filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the court cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and applies the same procedural rules and substantive law to Plaintiff as to a represented party, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008); Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
On August 17, 2020, after the Parties declined to consent to the jurisdiction of a magistrate judge, this action was reassigned to the Honorable Christine M. Arguello. [#24; #25]. Shortly thereafter, Judge Arguello referred this case to the undersigned pursuant to 28 U.S.C. § 636(b). [#27, filed August 23, 2020].
On August 26, 2020, Defendant filed the instant Motion for Administrative Closure. [#28]. The court held a Status Conference on September 1, 2020 and ordered Plaintiff to respond to Defendant's Motion for Administrative Closure on or before September 23, 2020. [#30]. Plaintiff's Response to the Motion for Administrative Closure ("Response") was filed on the docket on September 24, 2020. [#41]. That same day, Plaintiff filed the instant Motion to Appoint Counsel. [#42]. The Motion for Administrative Closure is ripe for Recommendation and the undersigned finds it appropriate to decide Plaintiff's Motion to Appoint Counsel concurrently. I consider the Parties' arguments below.
MOTION FOR ADMINISTRATIVE CLOSURE
Defendant seeks to stay or administratively close the instant action because Mr. Davis's Complaint, and his single FTCA claim asserted therein, arises out of the same incident for which Mr. Davis is currently being criminally investigated. See [#28]. Plaintiff opposes the Motion for Administrative Closure and asks that this civil action be permitted to proceed to discovery. See [#41].
I. Legal Standard
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings. See String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PA, 2006 WL 894955, at *2 (D. Colo. March 30, 2006) (unpublished). Federal Rule of Civil Procedure 26 does, however, provide that "[a] party or any person from whom discovery is sought may move for a protective order," and the court may, "for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed. R. Civ. P. 26(c).
Whether to stay a matter is left to the sound discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990); Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (recognizing that the power to stay "is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." (citing Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931))). Although courts in this District generally disfavor stays, a stay may be appropriate under particular circumstances, such as parallel civil and criminal proceedings. See, e.g., Hartford Life and Accident Ins. Co. v. Nickal, No. 17-cv-02556-MSK-MJW, 2018 WL 1173150, at *1 (D. Colo. Mar. 6, 2018).
Generally, there is no constitutional requirement to stay civil proceedings pending the outcome of criminal proceedings, absent substantial prejudice to a party's rights. Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009) (citations omitted); see also Ben Ezra Weinstein & Co., Inc. v. Am. Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000) ("When applying for a stay, a party must demonstrate a clear case of hardship or inequity.") (citations and internal quotations omitted). When deciding whether the interests of justice seem to require a stay, the court must be mindful of the extent to which a party's Fifth Amendment rights are implicated; potential advantages to one party or another arising from broader civil discovery rights; and potential exposure of the criminal defense strategy to the prosecution. See Creative Consumer Concepts, Inc., 563 F.3d at 1080-81 (citations omitted).
Courts in the District of Colorado have considered the following factors when determining whether deferring a civil action in favor of a criminal one is appropriate: (1) the extent to which the issues in the civil and criminal cases overlap; (2) the status of the criminal case, including whether there has been an indictment; (3) the interests of, prejudices to, and burden on the plaintiff; (4) the interests of and burden on the defendant; (5) the interest of the court; and (6) the public interest. See Nickal, 2018 WL 1173150, at *2 (collecting cases); Maxton v. United States, 2014 WL 5091972, at *4 (D. Colo. Oct. 10, 2014) (citing AIG Life Ins. Co. v. Phillips, No. 07-cv-00500-PSF-MEH, 2007 WL 2116383, at *2 (D. Colo. July 20, 2007)).
Relatedly, administrative closure pursuant to D.C.COLO.LCivR 41.2 may be appropriate when a case would otherwise be stayed for an indefinite amount of time, subject to reopening for good cause. See, e.g., Nickal, 2018 WL 1173150, at *1 (finding administrative closure appropriate because it was unclear when the parallel criminal proceeding would be adjudicated). Indeed, administrative closure is construed as "the practical equivalent of a stay." Quinn v. CGR, 828 F.2d 1463, 1465 n.2 (10th Cir. 1987). And it is a way for the court to manage its docket by "shelv[ing] pending, but dormant, cases[ ]" without a final adjudication. See Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 392 (1st Cir. 1999).
II. Analysis
Defendant seeks a stay or administrative closure of the instant action pending resolution of the Government's criminal investigation stemming from the same series of events set forth in Mr. Davis's Complaint. I first consider whether a stay is appropriate under the six-factor inquiry set forth above.
Overlap of the Criminal and Civil Proceedings. The ongoing criminal investigation of Mr. Davis overlaps almost entirely with the issues raised in Mr. Davis's Complaint. Indeed, Mr. Davis claims that prison correctional officers were negligent in failing to prevent Mr. Graham from entering the facility with a knife and attacking Mr. Davis [#1 at ¶¶ 1-8], and Mr. Davis is under criminal investigation for the murder of Mr. Graham arising from the same events, [#28 at 2]. I find that the proceedings overlap considerably and that the overlap weighs in favor of a stay.
Status of the Criminal Case. Mr. Davis has not been indicted in connection with Mr. Graham's death. See [id. at 7]. To the extent that Plaintiff argues that the criminal investigation against him cannot constitute a "criminal proceeding" for purposes of this court's analysis, see [#41 at 3-4], this court is unpersuaded. "The term 'investigation' is used by courts interchangeably or in tandem with 'proceeding' when discussing parallel civil and criminal matters, and whether the criminal matter is, in fact, an investigation rather than a court proceeding does not appear to be the determining factor." Sea Salt, LLC v. Bellerose, 2:18-cv-00413-JAW, 2020 WL 2475874, at *2 n.1 (D. Maine May 13, 2020) (citing Zavastsky v. O'Brien, 902 F. Supp. 2d 135, 147 (D. Mass. 2012) ("While a court is not compelled to stay a civil proceeding during the pendency of a parallel criminal investigation or proceeding, such a scenario has been recognized as one in which a stay may be appropriate.")).
While courts in this District have found that the absence of an indictment weighs against a stay, see, e.g., Brancato v. Panio, No. 12-cv-02338-MSK-MEH, 2012 WL 6137472, at *2 (D. Colo. Dec. 7, 2012), "[c]ourts can and do . . . grant pre-indictment stays, when warranted by particular circumstances," Patrick v. Apple, 9:20-CV-0047 (LEK/DJS), 2020 WL 4816015, at *4 (N.D.N.Y. Aug. 19, 2020) (collecting cases). "There is no question that a court has discretion to stay a civil litigation even in favor of a pending investigation that has not ripened into an indictment." In re 650 Fifth Ave., No. 08-cv-10934, 2011 WL 3586169, at *4 (S.D.N.Y. Aug. 12, 2011) (quoting Sterling Nat'l Bank v. A-1 Hotels Int'l, Inc., 175 F. Supp. 2d 573, 576 (S.D.N.Y. 2001)). Given the clear overlap between this action and the criminal investigation of Mr. Davis, and the resulting difficulties, this court finds that the lack of indictment is not an impediment to a stay.
Interests of , Prejudices to , and Burden on Plaintiff. Mr. Davis asserts a claim under the FTCA, wherein claims for injunctive or declaratory relief are unavailable. See 28 U.S.C. § 1346(b); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 863 (10th Cir. 2005). Thus, should Mr. Davis ultimately prevail on his FTCA claim, a stay of his civil case would not irretrievably deprive him of the relief available to him under the FTCA. Indeed, Mr. Davis stands to benefit from a stay of the instant action insofar as he otherwise risks waiver of his Fifth Amendment rights. See, e.g., SEC v. Trujillo, No. 09-cv-00403-MSK-KMT, 2010 WL 2232388, at *1 (D. Colo. June 1, 2010) ("When considering a stay in a matter involving parallel criminal and civil proceedings, the primary debate centers on the criminal defendant's potential waiver or invocation of his Fifth Amendment rights.").
Mr. Davis "assertively declares not to impede discovery by invoking [Fifth] Amendment privileges, acknowledging that his right against self-incrimination would be threatened by this case. Yet it is a choice that Plaintiff embarks on[.]" [#41 at 5]. While it may be Plaintiff's prerogative to knowingly waive his Fifth Amendment rights, this court remains concerned that Mr. Davis might inadvertently do so in the context of civil discovery without the benefit of advice from criminal defense counsel. Indeed, while the constitutional right to counsel is secured in a criminal matter, it is not in a civil one. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). Accordingly, I find that this factor slightly disfavors a stay. I turn next to consider the Government's interests in and burdens posed by a stay.
Interests of and Burden on Defendant. This court finds that Defendant's interests and burdens weigh in favor of a stay. Conducting a criminal investigation of Mr. Davis while simultaneously defending against Mr. Davis's civil action poses a litany of problems related to discovery and disclosures. Criminal discovery under the Federal Rules of Criminal Procedure is substantially narrower than the discovery contemplated in civil actions under the Federal Rules of Civil Procedure. Compare Fed. R. Crim. P. 15(a) with Fed. R. Civ. P. 15(a). Moreover, this court respectfully agrees with Defendant's concerns that "documents, witnesses, and testimony that the United States will need to rely on" to defend the instant civil action "are part of the Government's criminal investigation" of Mr. Davis and could: (a) expose the Government's "developing view of the facts and theory of the prosecution in advance of any criminal proceeding"; (b) "permit key witnesses to hear reports on matters being investigated criminally," thereby jeopardizing the investigation; (c) "enable potential targets of a criminal investigation to obtain earlier and greater access to information" thereon; (d) provide discovery to Mr. Davis beyond the limits set forth in the Federal Rules of Criminal Procedure; (e) create unfairness and prejudice to the subjects and targets of the criminal investigation; and (f) result in inefficiencies and inadequacies in the discovery process to the extent Mr. Davis seeks information that cannot be disclosed during the ongoing criminal investigation. [#28 at 2-3].
Simply, the Government has an interest in not disclosing information regarding an ongoing investigation—including witnesses and/or statements that could imperil the investigation or the general administration of the institution. Accordingly, this court finds that this factor weighs in favor of a stay to "prevent either party from taking advantage of broader civil discovery rights[.]" Creative Consumer Concepts, 563 F.3d at 1080-81.
Interests of the Court and the Public. Federal Rule of Civil Procedure 1 requires that the Federal Rules of Civil Procedure "be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. Administrative closure or stay of this action may result in a delay of Mr. Davis's civil proceeding but will avoid using limited court resources to navigate complicated issues that will likely arise in the context of balancing the Parties' competing interests during discovery.
Furthermore, the court must also ensure the "just" determination of the instant action. See Fine v. Tumpkin, No. 17-cv-02140-WJM-MEH, 2018 WL 317466, at *5 (D. Colo. Jan. 8, 2018). Even if this court granted the appointment of counsel in this action, it cannot guarantee that a pro bono attorney will be available or upon what timeline. See D.C.COLO.LCivR 15(f); Wojdacz v. Wood, No. 15-CV-02083-WJM-KLM, 2018 WL 11013795, at *1 (D. Colo. Nov. 5, 2018) (observing that the granting of a motion to appoint counsel results in representation being secured for the plaintiff only if an attorney volunteers to represent the party). Therefore, significant concerns remain with regard to Mr. Davis's ability to navigate discovery and protect himself appropriately to avoid unintended consequences in any potential criminal prosecution. As discussed above, discovery in Mr. Davis's civil action threatens to compromise the Defendant's ongoing criminal investigation of Mr. Davis and generally, "[t]he public's interest in the integrity of [a] criminal case is entitled to precedence over the civil litigant." Maloney v. Gordon, 328 F. Supp. 2d 508, 513 (D. Del. 2004). Thus, this court finds that the fifth and sixth factors of the inquiry weigh in favor of a stay. See Tumpkin, 2018 WL 317466, at *5 (considering factors five and six together and concluding that ensuring a just determination outweighed interests in securing a speedy determination).
In sum, this court finds that the balance of the foregoing factors weighs in favor of a stay of the instant civil action pending resolution of Defendant's criminal investigation. In addition, because it is unclear when the criminal investigation of Mr. Davis will conclude or whether an indictment will follow, this court finds that administrative closure—rather than an indefinite stay of the proceedings—is appropriate. See, e.g., Nickal, 2018 WL 1173150, at *1 (finding administrative closure appropriate because it was unclear when the parallel criminal proceeding would be adjudicated). Accordingly, the court respectfully recommends that Defendant's Motion for Administrative Closure be granted.
MOTION TO APPOINT COUNSEL
The determination of whether to seek pro bono counsel in a civil case is left to the sound discretion of the trial court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). But the court cannot assign counsel; instead, the court can only ask an attorney to take the case. Moaz v. Denver Int'l Airport, 747 F. App'x 708, 711 (10th Cir. 2018) (citing Rachel v. Troutt, 820 F.3d 390, 396-97 (10th Cir. 2016)). In deciding whether to request counsel for a civil litigant, the district court should evaluate "the merits of a [litigant's] claims, the nature and complexity of the factual issues, and the [litigant's] ability to investigate the facts and present his claims." Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted); accord D.C.COLO.LAttyR 15(f)(1)(B)(i)-(iv) (providing factors that the court should consider in determining whether to appoint pro bono counsel). "The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." Hill, 393 F.3d at 1115 (citation omitted). "Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned." Id.
Plaintiff argues that his circumstances favor appointment in part because "[t]his matter is proceeding to trial, discovery, deposition(s), etc. of the plaintiff," on his FTCA claim. [#42 at 2]. However, for the reasons set forth above, the undersigned recommends that this case be administratively closed pending conclusion of the ongoing criminal investigation of Plaintiff. If Judge Arguello ultimately orders that the instant action be administratively closed, this matter will not proceed to discovery or trial unless or until the case is reopened. Notwithstanding the possibility of administrative closure, this court considers the merits of Plaintiff's remaining arguments with respect to appointment of counsel.
In the instant Motion to Appoint Counsel, Plaintiff contends that the "interests of justice will be benefited because of [his] state of indigency and the AUSA pursuit of Capital Punishment of a man who naturally defended himself against an assassin." [#42 at 3]. To the extent Plaintiff seeks counsel to defend him against criminal prosecution not before this court, this court lacks jurisdiction to grant the requested relief.
Upon review of the docket and Plaintiff's filings, this court concludes that appointment of counsel is unwarranted presently. As Mr. Davis asserts a single claim against a single Defendant, see [#1; #12], the court finds that the legal issues and facts presented in the pleading are not uniquely complex such that counsel is warranted. See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (explaining appointment of counsel is appropriate in "extreme case[s] where the lack of counsel results in fundamental unfairness"). Additionally, Defendant has yet to respond to Plaintiff's Complaint—and Defendant's deadline to do so remains over a month away. See [#33]. Therefore, it is premature to make any determinations of the merits of Plaintiff's claim or Defendant's defenses. In a previous ruling, this court found that Plaintiff's filings demonstrated the ability to clearly articulate his arguments to the court and benefit from the liberal construction afforded his filings based on his pro se status. [#22 at 3 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972))]. Plaintiff's subsequent filings continue to demonstrate his ability to clearly articulate his arguments. See, e.g., [#41]. Should circumstances change as this case proceeds, Mr. Davis may file another motion requesting counsel at that time. See McCullon v. Parry, No. 18-CV-00469-NYW, 2019 WL 4645436, at *5 (D. Colo. Sept. 24, 2019) ("Based on the court's conclusion above, I find it appropriate under the factors of D.C.COLO.LAttyR 15(f)(1)(B)(i)-(iv) to seek appointment of pro bono counsel given that this matter is now moving to trial." (emphasis added)).
CONCLUSION
Based on the foregoing considerations, I respectfully RECOMMEND that:
(1) Defendant's Motion for Administrative Closure [#28] be GRANTED ;
(2) This case be ADMINISTRATIVELY CLOSED pending conclusion of Defendant's criminal investigation, and any subsequent prosecution, of Mr. Davis; and
(3) Defendant be ORDERED to file with the court every 90 days a status report detailing the status of its criminal investigation of Mr. Davis.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Additionally, IT IS ORDERED that:
(1) Plaintiff's Motion to Appoint Counsel is DENIED without prejudice; and
(2) A copy of this Recommendation and Order, marked as legal mail, be sent to the following:
DATED: September 28, 2020Eleke Davis #11881-042
FLORENCE HIGH
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 7000
FLORENCE, CO 81226
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge