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The Estate of Anastacio Hernandez-Rojas, et al v. Customs and Border Patrol Agent 7663

November 7, 2012

THE ESTATE OF ANASTACIO HERNANDEZ-ROJAS, ET AL.,
PLAINTIFFS,
v.
CUSTOMS AND BORDER PATROL AGENT 7663, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge

ORDER DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION FOR STAY OF DISCOVERY [doc. #91] )

On August 1, 2012, Defendants Customs and Border Protection Agent 7663*fn1 , Border Patrol Agent V325, Border Patrol Agent V315, Immigration Enforcement Agent 2054, Immigration Enforcement Agent 7G2186, Border Patrol Agent L, Customs and Border Protection Agent B, Customs and Border Protection Officer S, Border Patrol Supervisor V61, Border Patrol Supervisor I199, Border Patrol Supervisor I68, Customs and Border Protection Supervisor CA Q03175, the United States of America, and DOES 1-25 ("Defendants") filed a motion for stay of discovery pending the conclusion of grand jury proceedings. [doc. #91.] On August 21, 2012, Plaintiffs The Estate of Anastacio Hernandez-Rojas, Daisy Hernandez, Daniel Hernandez, Daniela Hernandez, and Fabian Hernandez ("Plaintiffs") filed an opposition. [doc. #94.] Defendants filed a reply memorandum. [doc. #102.] The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). [doc. #101.] For the following reasons, the Court will deny without prejudice Defendants' motion to stay discovery.

BACKGROUND

On March 16, 2011, Plaintiffs commenced this action. [doc. #1.] On March 22, 2011, Plaintiffs filed the first amended complaint, and on August 2, 2011, Plaintiffs filed the second amended complaint. [doc. #3, 16.] On March 23, 2012, Plaintiffs filed the operative third amended complaint ("TAC"). [doc. #53.] Plaintiffs assert fourteen causes of action: five of the causes of action are alleged constitutional violations pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and the remaining nine are brought under the Federal Tort Claims Act and the Alien Tort Claims Act. (TAC 1.) Plaintiffs seek general and special damages, punitive damages, and injunctive or declaratory relief. (Id. 26:6-12.)

Plaintiffs allege that their father Anastacio Rojas Hernandez*fn2 died as a result of physical abuse by Defendants. (TAC ¶ 28.) On May 28, 2010, United States Border Patrol agents arrested Mr. Hernandez-Rojas and his brother on United States land near the Mexican border. (Id. ¶¶ 43-44, 46.) Following their arrest, the Border Patrol agents turned Mr. Hernandez-Rojas and his brother over to agents of the Wackenhut Company. (Id. ¶ 54.) Those agents then transported the men to the Border Patrol Detention Facility and turned them over to two of the defendants, Border Patrol Agent V315 and Border Patrol Agent V325. (Id. ¶¶ 57, 59.)

After Agent V325 ordered Mr. Hernandez-Rojas to empty his water jug, the agent allegedly slapped the jug from Mr. Hernandez-Rojas's hand. (TAC ¶¶ 62, 64.) Following Mr. Hernandez-Rojas's complaint to the agent about the slap, Agent V325 allegedly grabbed Mr. Hernandez-Rojas, pushed him against a wall, and "repeatedly kicked the inside of Anastacio's ankles." (Id. ¶¶ 65-67.) Mr. Hernandez-Rojas requested medical treatment and an opportunity to appear before an Immigration judge. (Id. ¶¶ 72-73.) Agent V325 allegedly did not comply with Mr. Hernandez-Rojas's requests. (Id. ¶ 74.)

After being taken to the processing area, Mr. Hernandez-Rojas complained to two Border Patrol agents about Agent V325's treatment and requested medical attention and the opportunity to appear before an Immigration judge. (TAC ¶¶ 75-76.) Mr. Hernandez-Rojas then reiterated his complaint and requests to Border Patrol Supervisor V61. (Id. ¶ 78.) In response, Supervisor V61 allegedly ordered Agents V315 and V325 to remove Mr. Hernandez-Rojas from the United States. (Id. ¶ 82.) The agents drove Mr. Hernandez-Rojas to a border area known as "Whiskey 2," took him out of the car, and allegedly pushed him against the car and "tried to throw him to the ground." (Id. ¶¶ 86, 88.) Immigration Enforcement Agent 7G2186 and Immigration Enforcement Agent 2054 arrived and allegedly struck Mr. Hernandez-Rojas "repeatedly" with batons. (Id. ¶ 89.) Border Patrol Agent L arrived and allegedly punched Mr. Hernandez-Rojas "repeatedly." (Id. ¶ 90.) The agents allegedly threw Mr. Hernandez-Rojas to the ground and handcuffed him. (Id. ¶ 91.) While Mr. Hernandez-Rojas was lying on his stomach, the agents allegedly "punched, kicked and stepped on Anastacio's head and body." (Id. ¶ 92.)

While this was taking place, a group of civilians formed. (TAC ¶ 93.) The civilians took photographs and videos of the events and allegedly screamed for the agents to stop. (Id. ¶¶ 94-95.) Mr. Hernandez-Rojas allegedly cried out for help and begged for the agents to stop. (Id. ¶ 98.) Plaintiffs allege that U.S. Customs and Border Protection Supervisor CAQ03175 and officers confiscated bystanders' phones and erased the photographs and videos. (Id. ¶ 96.)

Agents B and S, along with the original agents on the scene, allegedly struck Mr. Hernandez-Rojas. (TAC ¶ 102.) After Border Patrol Supervisors I199 and I68 arrived, they allegedly "permitted and encouraged the agents to continue abusing Anastacio." (Id. ¶¶ 103-105.) Customs and Border Patrol Officer V7663 allegedly shot Mr. Hernandez-Rojas with his Taser gun five times. (Id. ¶ 107, 114.) Border Patrol Agent L, Customs and Border Protection Agent B, and Customs and Border Protection Officer S then allegedly beat Mr. Hernandez-Rojas and"ziptied his legs to his already handcuffed hands, putting him in a 'hog tied' position on his stomach." (Id. ¶ 115.)

Plaintiffs allege that as a result of these events, Mr. Hernandez-Rojas suffered a heart attack and ultimately died. (TAC ¶¶ 116, 118.) Dr. Marvin Pietruszka performed an autopsy and found several injuries to Mr. Hernandez-Rojas's body. (Id. ¶ 118.) Dr. Pietruszka ruled the death a homicide and found "the cause of death to be lack of oxygen to the brain brought on by a heart attack." (Id. ¶ 119.)

Depositions have not yet begun. (Defs.' Mot. 3:25; Pls.' Reply 3:2-3.) On June 28, 2012, Magistrate Judge Bartick granted the parties' joint motion to continue discovery deadlines. [doc. #77.] The modified scheduling order required depositions of "the investigating officers from the San Diego Police and Fire Departments, the San Diego County medical examiner, the toxicologists, and all other non-percipient fact witnesses" to be completed by October 30, 2012. )

All fact discovery is required to be completed by January 2, 2013. (Id.)

LEGAL STANDARD

Under the Constitution, a judge is not required to stay civil proceedings until criminal proceedings have concluded. Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (citing Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989). Simultaneous civil and criminal proceedings are "unobjectionable" . . . "[i]n the absence of substantial prejudice to the rights of the parties involved." Id. (quoting Securities & Exchange Comm'n v. Dresser Indus., 628 F.2d 1358, 1375 (D.C. Cir. 1980) (internal quotations omitted). However, a court may decide to stay civil proceedings when justice so requires. Id. (citing Dresser, 628 F.2d at 1375). When deciding whether to stay civil proceedings due to a parallel criminal proceeding, courts should make the decision "in light of the particular circumstances and competing interests involved in the case." Id. (quoting Molinaro, 889 F.2d at 902) (internal quotations omitted). Courts must consider "the extent to which the defendant's fifth amendment rights are implicated" and should also consider these factors:

(1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay;

(2) the burden which any particular aspect of the proceedings may impose on defendants;

(3) the convenience of the court in the management of its cases, and the efficient use of judicial resources;

(4) the interests of persons not parties to the civil litigation; and

(5) the interest of the public in the pending civil and criminal litigation. at 324-25 (quoting ...


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