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Estate of Swayzer v. Armor Correctional Health Services, Inc.

United States District Court, E.D. Wisconsin

March 29, 2018



          WILLIAM E. DUFFIN, U.S. Magistrate Judge


         According to the third amended complaint (ECF No. 146), Shadé Swayzer was approximately nine months pregnant when she was arrested and booked into the Milwaukee County Jail on July 6, 2016. On the morning of July 14, 2016, Swayzer went into labor. She asked for immediate medical attention. The correctional officer did nothing. At approximately 5:00 AM, while alone in her cell and without having received any medical attention, Swayzer gave birth to a daughter, whom she named Laliah. Neither Swayzer nor Laliah received any medical attention for at least another hour. By the time paramedics arrived at 6:21 AM, Laliah was not breathing. Laliah was declared dead at 6:55 AM.

         Laliah's estate, Swayzer, and Laliah's siblings filed this action in December 2016, naming Armor Correctional Health Services, Inc., certain of its healthcare employees, Milwaukee County, Sheriff David J. Clarke, Jr., several correctional officers and others as defendants. Armor provided healthcare to inmates at the Milwaukee County Jail. The plaintiffs allege that Armor is liable pursuant to Monell v. N.Y. Dep't of Soc. Servs., 436 U.S. 658 (1978). See Shields v. Ill. Dep't of Corr., 746 F.3d 782, 789 (7th Cir. 2014).

         A little over a year later, on February 21, 2018, the State of Wisconsin criminally charged Armor with seven misdemeanor offenses of intentionally falsifying a health care record. (ECF No. 174-1; see also Milwaukee Cnty. Cir. Ct. Case No. 2018CM000748, available at The criminal charges are related to the death of another inmate under Armor's care at the Milwaukee County Jail, Terrill Thomas, who died from dehydration after he was locked in his cell without water for nearly a week. Armor employees are alleged to have repeatedly falsely stated in health care records that they provided medical care to Thomas during the period he was denied water. The State of Wisconsin alleged in the criminal complaint that “Armor Correctional employees engaged in a pattern and practice of intentionally falsifying entries in inmate patient health care records.” (ECF No. 174-1, ¶ 28.) However, the state did not criminally charge any individual Armor employee.

         Two days after the criminal charges were filed plaintiffs' counsel sent an email to defense counsel stating, “we intend to seek leave to amend the complaint based on the criminal charges filed against your client for its ‘pattern and practice of falsifying patient health care records.'” (ECF No. 168 at 14.) No motion to amend the complaint has yet been filed.

         On February 26, 2018, Armor filed a motion to stay this action. (ECF No. 171.) It argues, “Absent a stay in discovery, various health care defendants and Armor witnesses will be faced with the unnecessary dilemma caused by having to choose between waiving their Fifth Amendment privilege or effectively forfeiting the civil suit.” (ECF No. 172 at 1.) It asserts, “Armor's interest and defense in this lawsuit will be severely harmed if a stay is not granted.” (ECF No. 184 at 6.) Defendant Milwaukee County and its defendant employees support the motion to stay. (ECF No. 180.)


         It is not uncommon for courts to stay a civil action until the completion of related criminal proceedings when absent a stay a party may be forced to choose between preserving his right against self-incrimination or fully defending the civil action. See, e.g., Salcedo v. City of Chi., No. 09-cv-05354, 2010 U.S. Dist. LEXIS 67991, at *11 (N.D. Ill. July 8, 2010); Chagolla v. City of Chi., 529 F.Supp.2d 941 (N.D. Ill. 2008); Mr. Dee's, Inc. v. Int'l Outsourcing Servs., LLC, No. 08-C-457, 2008 U.S. Dist. LEXIS 93726 (E.D. Wis. Nov. 3, 2008); Doe v. City of Chi., 360 F.Supp.2d 880, 882 (N.D. Ill. 2005); United States v. All Meat & Poultry Prods., No. 02 C 5145, 2003 U.S. Dist. LEXIS 17677, at *17 (N.D. Ill. Oct. 2, 2003).

         However, a defendant is not automatically entitled to a stay merely because the civil case stands to undercut his privilege against self-incrimination. CMB Exp., LLC v. Atteberry, No. 4:13-cv-04051-SLD-JEH, 2014 U.S. Dist. LEXIS 116095, at *6 (C.D. Ill. Aug. 20, 2014).

Determination of whether to grant a stay due to parallel criminal litigation involves balancing the interests of the plaintiff, the defendants, and the public. The factors considered include the following non-exclusive list: whether the civil and criminal matters involve the same subject; whether the governmental entity that has initiated the criminal case or investigation is also a party in the civil case; the posture of the criminal proceeding; the effect of granting or denying a stay on the public interest; the interest of the civil-case plaintiff in proceeding expeditiously, and the potential prejudice the plaintiff may suffer from a delay; and the burden that any particular aspect of the civil case may impose on defendants if a stay is denied.

Chagolla, 529 F.Supp.2d at 945 (citing Cruz v. County of DuPage, No. 96 C 7170, 1997 U.S. Dist. LEXIS 9220, 1997 WL 370194, at *2 (N.D. Ill. June 27, 1997)). “Granting of a stay ‘is the exception, not the rule, and the party seeking the stay has the burden of demonstrating it is necessary.'” CMB Exp., 2014 U.S. Dist. LEXIS 116095, at *5 (quoting Hollinger Int'l, Inc. v. Hollinger Inc., No. 04 C 698, 2005 U.S. Dist. LEXIS 14437, at *8 (N.D. Ill. July 15, 2005)). “A stay is appropriate in ‘special circumstances' when there is a need to avoid substantial and irreparable prejudice.” Id. (quoting United States v. Certain Real Property, Commonly known as 6250 Ledge Road, Egg Harbor, Wis., 943 F.2d 721, 729 (7th Cir.1991)). Ultimately, a stay of civil proceedings pending the resolution of criminal proceedings is appropriate “‘when the interests of justice' require it.” Salcedo, 2010 U.S. Dist. LEXIS 67991, at *5 (quoting United States v. Kordel, 397 U.S. 1, 12 n. 27 (1970)).

         1. Same Subject Matter

         Armor states that “[t]here is no question that [the] pending criminal proceeding against Armor concerns the same facts as Plaintiff's (sic) new theory of liability.” (ECF No. 172 at 5.) Moreover, “Plaintiffs have alleged that the death of Terrill Thomas…is proof of the alleged pattern of Armor violating inmate's (sic) rights through deficient health care.” (ECF No. 184 at 4.) Thus, it argues, “it is nearly ...

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