United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN, U.S. Magistrate Judge
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.
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.
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 wcca.wicourts.gov.) 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
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.
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.)
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).
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
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)).
Same Subject Matter
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 ...