United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. Defendants have filed a
motion to stay this action pending plaintiff's state
criminal proceedings which, they contend, arise from the same
facts at issue in this case. ECF No. 41. Plaintiff has filed
an opposition to the motion (ECF No. 46) and defendants have
filed a reply (ECF No. 47). For the reasons stated hereafter,
defendants' motion should be granted.
operative complaint, plaintiff alleges that defendants
subjected him to excessive force on October 10, 2014. ECF No.
10 at 7. Specifically, he contends that, defendant Pogue
approached his cell and informed him that defendant Warren
had seen him masturbating “in the cell on the bunk
[across] from the officer's desk.” Id. at
8. Plaintiff was then escorted from his cell to the medical
clinic where defendants Pogue, Hickman, Almodovar and several
other unnamed officers assaulted him by bashing his head into
a window, dislocating his shoulder, slamming him to the
floor, and placing weight on his supine body. Id. at
8-9. Plaintiff claims that defendant Kumeh, a vocational
nurse, witnessed these events, ignored his cries for help,
and falsely documented that plaintiff had not sustained
injuries during the altercation. Id. After these
events, plaintiff alleges that defendant Brazil subjected him
to a second incident of excessive force by bending his arm
during the escort back to a cell. Id. at 9-10.
their motion, defendants state that the events of October 10,
2014 are the subject of a pending state criminal case against
plaintiff in Amador County. ECF No. 41 at 3. He received a
rules violation report for indecent exposure on that date.
Id. Defendants argue that, afterwards and contrary
to his allegations, plaintiff became upset during an escort
from his cell and officers used force to restrain him.
Id. As a consequence, he is being charged with one
instance of resisting arrest/threatening an officer under
California Penal Code section 69 and two
instancesof indecent exposure under California Penal
Code section 314(1). Id. Plaintiff's criminal
case was originally set for trial on March 6, 2018, but
plaintiff filed a motion to continue which was granted.
Id. A trial setting conference was scheduled for
March 9, 2018 but, at the time the motion was filed, no date
certain for the trial was available. Id.
raise two arguments as to why this action should be stayed.
First, they argue that a stay is appropriate under the rubric
announced in Keating v. Office of Thrift
Supervision, 45 F.3d 322 (9th Cir. 1995), where the
Ninth Circuit explained:
The Constitution does not ordinarily require a stay of civil
proceedings pending the outcome of criminal proceedings.
“In the absence of substantial prejudice to the rights
of the parties involved, [simultaneous] parallel [civil and
criminal] proceedings are unobjectionable under our
jurisprudence.” “Nevertheless, a court may decide
in its discretion to stay civil proceedings . . . ‘when
the interests of justice seem to require such
The decision whether to stay civil proceedings in the face of
a parallel criminal proceeding should be made “in light
of the particular circumstances and competing interests
involved in the case.” This means the decisionmaker
should consider “the extent to which the
defendant's fifth amendment rights are implicated.”
In addition, the decisionmaker should generally consider the
following 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
Id. at 324-25. Second, they argue that a stay is
appropriate pursuant to Younger v. Harris, 401 U.S.
37, 45-46 (1971). The court finds the latter argument
persuasive and thus declines to address the former.
Younger, abstention is required if: (1) the state
court proceedings are ongoing; (2) the proceedings implicate
important state interests; (3) the state proceedings provide
an adequate opportunity to raise federal questions; and (4)
the federal court action would enjoin, or have the practical
effect of enjoining, the state court. AmerisourceBergen
Corp. v. Roden, 495 F.3d 1143, 1149 (9th Cir. 2007). The
first two factors are clearly met and, given the charges
against him, plaintiff should be afforded an opportunity to
raise an excessive force claim as part of his defense. In
Jones v. County of Contra Costa, the court explained
To be found guilty of resisting an officer under California
Penal Code § 69 - one of the charges against Jones - the
officer must have been engaged ‘in the performance of
his duty' at the time. This requires that officer be
engaged in the “lawful” performance of his
duties. . . . In response to any evidence presented by the
prosecutor that Jones resisted the officers, Jones could
defend those allegations by claiming that the officers were
not acting in ‘lawful' performance because they
used excessive force against him, violated equal protection
and committed the other offenses that Jones alleges in his
federal civil complaint. . . . Jones would thus be able to
raise his claims regarding the officers' unlawful conduct
in state court, thereby satisfying the third prong.
Jones v. County of Contra Costa, No.
13-cv-05552-TEH, 2014 U.S. Dist. LEXIS 50734, *6-7 (N.D. Cal.
Apr. 11, 2014).
fourth prong is also met insofar as hearing this case could
unreasonably intrude on the state court case. A determination
of whether plaintiff was subjected to excessive force under
the Eighth Amendment focuses on whether the force used was
employed not in “good faith effort to maintain or
restore order, [but] maliciously and sadistically for the
very purpose of causing harm.” Hudson v.
McMillian, 503 U.S. 1, 6 (1992). Thus, this court would
have to evaluate whether any resistance raised by plaintiff