NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRADLEY C. PETERSON, : Civil Action No.: 11-2594 (FLW)

:

Plaintiff, :

:

v. : MEMORANDUM OPINION

: AND ORDER

A. MATLOCK, JR., et al., :

:

Defendants. :

____________________________________:

ARPERT, U.S.M.J

I. INTRODUCTION

This matter having come before the Court on a Motion by Defendants A. Matlock, Jr.

(“Matlock”), R. Lewis (“Lewis”), and R. Perkins (“Perkins”) (collectively, “Served Defendants”)

to stay this proceeding pending the outcome of an ongoing criminal investigation, indictment, and

proceedings [dkt. entry no. 32], returnable November 7, 2011. No opposition was filed by Plaintiff.

For the reasons stated herein, Served Defendants’ Motion to stay this proceeding is granted subject

to Defendants SCO. Albanese (“Albanese”), Sgt. K. Newsom (“Newsom”) (improperly pled as

“Newsome”), and S. Alaimo (“Alaimo”) (collectively, “Unserved Defendants”) being served.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 6, 2011, Plaintiff filed a Complaint alleging that he was assaulted by certain New

Jersey State Prison (“NJSP”) Correction Officers – all of the named defendants – on July 13, 2011. 

See Pl.’s Compl., dkt. entry no. 1 at 10. On July 29, 2011, Matlock, Lewis, and Perkins were served

with a Summons and a copy of the Complaint. See dkt. entry no. 11. Served Defendants were

granted a Clerk’s extension of time within which to answer, move, or otherwise reply to the

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Complaint until September 2, 2011 (see dkt. entry no. 14) and, thereafter, the Court granted a further

extension until October 6, 2011 (see dkt. entry no. 26). Although Albanese, Newsom, Alaimo were

named defendants in the Complaint (see dkt. entry no.1), and although the Court issued an Order

allowing Plaintiff to proceed against Unserved Defendants (see dkt. entry no. 3), to date service has

not been effected on Albanese, Newsome, or Alaimo because they were/are “not employed

at...[NJSP]” (see dkt. entry nos.12 & 19). On October 6, 2011, Served Defendants filed the present

Motion to stay this proceeding pending the outcome of an ongoing criminal investigation,

indictment, and proceedings. [dkt. entry no. 32] 

The Court notes that on March 25, 2011, “a Mercer County grand jury returned an indictment

charging...Alaimo and...Newsom in connection with an alleged assault of Plaintiff at NJSP on July

13, 2010 (State v. Lieutenant Stephen Alaimo and Sergeant Kevin Newsom, Indictment No.: 10-

3765-01)”. See Def.’s Cert. of Daniela Ivancikova (“Ivancikova”), dkt. entry no. 32-2 at 2; see also

Def.’s Br., dkt. entry no. 32-1 at 3. “The alleged assault is the subject matter of the civil matter at

issue”. Id. Presently, “the Prosecutor’s Office will not release any information or documents from

their investigation file until after the investigation and any resulting criminal proceedings are

concluded”. Id. “This is so despite the pending civil litigation regarding the identical matter”

because “[p]remature release of...information could hamper the criminal proceedings”. See Def.’s

Br. at 3. As a result, the State of New Jersey Attorney General’s Office (“AG’s Office”) “cannot

obtain the requested information and documents necessary to determine whether representation

should be granted to [Served and/or Unserved] Defendants”. Id. at 4. For this reason, Served

Defendants – through the AG’s Office as their potential counsel – move “for a stay of this matter

until resolution” of the underlying criminal matter. Id.

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A. Served Defendants’ Arguments in Support of the Motion to Stay

1. The interests of justice require that this civil suit be stayed pending the

outcome of the on-going parallel criminal investigation and proceedings.

Served Defendants maintain that “[a] stay promotes efficiency and fairness...because...[the

AG’s Office] cannot determine whether representation should be granted to the [Served and/or

Unserved] Defendants until counsel has access to the relevant documents” and “the parties will not

be able to proceed with discovery, obtain the documents generated by the Mercer County

Prosecutor’s Office’s investigation, or take depositions until the criminal investigation and

proceedings are concluded”. See Def.’s Br. at 4-5. Citing Walsh Secs., Inc. v. Cristo Prop. Mgt.,

Ltd., 7 F. Supp. 2d 523, 526-27 (D.N.J. 1998), United States v. Kordel, 397 U.S. 1, 12 n.27 (1970),

Tucker v. N.Y. Police Dept., 2010 WL 703189, at *6 (D.N.J. 2010), Estes-El v. Long Istland Jewish

Medical Center, 916 F. Supp. 268, 269 (S.D.N.Y. 1995), and Telfair v. Tandy, 2008 U.S. Dist.

LEXIS 83462 (D.N.J. 2008), Served Defendants contend that the “court has discretion to stay a case

if the interests of justice require it” and that “it is well settled that the court may...stay a...1983 action

until resolution of parallel state court criminal proceedings”. Id. at 5. Citing Walsh Secs., 7 F. Supp.

2d at 526, Served Defendants note that “[i]n determining whether to grant a stay, the Court should

consider the following factors: (1) the extent to which the issues in the criminal and civil cases

overlap; (2) the status of the case, including whether the defendants have been indicted; (3) the

plaintiff’s interest in proceeding expeditiously weighed against the prejudice to plaintiff caused by

a delay; (4) the private interests of and burden on defendants; (5) the interests of the court; and (6)

the public interest”. See Def.’s Br. at 5-6. 

Served Defendants note that “the incident that is the subject of the allegations in Plaintiff’s

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Complaint is also the subject of an on-going criminal investigation”. Id. at 6. Specifically, Plaintiff

“alleges that on July 13, 2010...he was assaulted by...Matlock and Lewis while he was going outside

for recreation” and further “alleges that an emergency code was called in response to the altercation

and...Perkins, Newsom, Alaimo, and other officers responded to the code and participated in

assaulting him”. Id. Served Defendants also note that “Alaimo and...Newsom have been indicted

in connection with the events that took play on July 13, 2010”. Id. Served Defendants argue that

the “the criminal investigation and proceedings pertain to the identical set of circumstances as does

the instant civil matter”, that “two of the defendants in this matter have been indicted”, and therefore

that the criminal and civil cases “overlap entirely”. Id. Served Defendants maintain that “[a] stay

is necessary so that...[the AG’s Office] can obtain the requested information and documents

necessary to determine whether representation should be granted to [any of] the defendants” and “is

also necessary so that the defendants can adequately and properly defend themselves in this matter”. 

Id. at 6-7. “Without the ability to obtain the records and other materials from the criminal

investigation, the parties cannot proceed with initial discovery”. Id. at 7. Further, “while the

criminal investigation and proceedings are on-going, the parties’ Fifth Amendment rights will

prohibit them from engaging in anymeaningful discovery”. Id. Finally, Served Defendants contend

that “a stay will not prejudice Plaintiff because he has the same interest in engaging in the

meaningful exchange of discovery”. Id.

III. DISCUSSION

It is well-settled that “the power to stay proceedings 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. How this can best be done calls for the exercise of judgment,

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which must weigh competing interests and maintain an even balance”. Landis v. North American

Co., 299 U.S. 248, 254-55 (1936)(citing Kansas City Southern Ry. Co. v. U.S., 282 U.S. 760, 763

(1931); Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 (1935)). “Especially in cases of

extraordinary public moment, the individual may be required to submit to delay not immoderate in

extent and not oppressive in its consequences if the public welfare or convenience will thereby be

promoted”. Id. at 256. Specifically, “a United States district court has broad power to stay

proceedings”. Bechtel Corp. v. Laborers’ International Union, 544 F.2d 1207, 1215 (3d. Cir. 1976). 

“In the exercise of its sound discretion, a court may hold one lawsuit in abeyance to abide the

outcome of another which may substantially affect it or be dispositive of the issues”. Id. (see also

American Life Ins. Co. v. Stewart, 300 U.S. 203, 215 (1937)). However, “it is well settled that

before a stay may be issued, the petitioner must demonstrate ‘a clear case of hardship or inequity’,

if there is ‘even a fair possibility’ that the staywould work damage on another party”. Gold v. JohnsMansville Sales Corp., 723 F.2d 1068, 1075-76 (3d Cir. 1983)(citing Landis v. North American Co.,

299 U.S. 248, 255 (1936)). 

“A stay of a civil case where there are pending criminal proceedings is not constitutionally

required, however, it may be warranted in certain circumstances”. Walsh Securities, Inc. v. Cristo

Property Management, Ltd., 7 F. Supp. 2d 523, 526 (D.N.J. 1998); see also Trustees of Plumbers

and Pipefitters National Pension Fund v. Transworld Mechanical, Inc., 886 F. Supp. 1134, 1138

(S.D.N.Y. 1995). The factors to be considered in deciding whether to grant a stay include: “1) the

extent to which the issues in the criminal and civil cases overlap; 2) the status of the case, including

whether the defendants have been indicted; 3) the plaintiff’s interest in proceeding expeditiously

weighed against the prejudice to plaintiff caused by a delay; 4) the private interests of and burden

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on defendants; 5) the interests of the court; and 6) the public interest”. Walsh, 7 F. Supp. 2d at 527;

see also Transworld, 886 F. Supp. at 1139. “The similarity of issues has been termed ‘the most

important issue at the threshold’ in determining whether or not to grant a stay’”. Walsh, 7 F. Supp.

2d at 527(quoting Milton Pollack, Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 203

(1989)). “The state of the parallel criminal proceeding may also substantially affect the

determination of whether a stay is warranted [as] ‘the strongest case for a stay of discovery in the

civil case occurs during a criminal prosecution after an indictment is returned...[due to] the potential

for self-incrimination’”. Walsh, 7 F. Supp. 2d at 527(quoting Parallel Proceedings, 129 F.R.D. at

203). Based upon the fact that “there is less risk of self-incrimination, and more uncertainty about

the effect of a delay on the civil case, preindictment requests for a stay are generally denied”. Walsh,

7 F. Supp. 2d at 527; see also United States v. Private Sanitation Indus. Ass’n, 811 F. Supp. 802, 805

(E.D.N.Y. 1992). “However, each case must be evaluated individually...[and] it is ‘still possible’

to obtain a stay...if the Government is conducting an active parallel criminal investigation”. Walsh,

7 F. Supp. 2d at 527(quoting Parallel Proceedings, 129 F.R.D. at 204); see also Volmar

Distributors, Inc. v. New York Post Co., 152 F.R.D. 36, 38 (S.D.N.Y. 1993). 

Importantly, “the Fifth Amendment does not forbid adverse inferences against parties to civil

actions when they refuse to testify in response to probative evidence offered against them: the

Amendment does not preclude the inference where the privilege is claimed by a party to a civil

cause”. Baxter v. Palmigiano, 425 U.S. 308, 318-19 (1976). However, “a court may nevertheless

exercise its discretion to stay the civil case in the interests of justice”. Walsh, 7 F. Supp. 2d at 528.

The Court also notes that the Third Circuit does not recognize “the availability of a blanket fifth

amendment privilege [but] in no waylimit[s] the scope of an individual’s fifth amendment rights...”. 

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National Life Ins. Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595, 600 (3d Cir. 1980); see

also Hoffman v. United States, 341 U.S. 479, 486-87 (1951). 

1. Similarity of Issues

With respect to similarity of issues between the civil case and criminal investigation,

although perfect symmetry does not exist, the Court finds that the evidence presented by Served

Defendants demonstrates significant overlap in this instance. Plaintiff’s civil action alleges that he

was attacked and assaulted by certain NJSP Correction Officers – all of the named defendants – on

July 13, 2010 while going outside for recreation. See Pl.’s Compl. at 10. Similarly, based upon the

representations of the AG’s Office, a Mercer County grand jury returned an indictment charging

Alaimo and Newsom in connection with an alleged assault of Plaintiff at NJSP on July 13, 2010. 

See Def.’s Br. at 3. In both instances, the allegations relate to a July 13, 2010 alleged attack and

assault on Plaintiff by certain NJSP Correction Officers. While the specifics of the criminal

investigation have yet to be fullyelucidated, the information presented to the Court indicates that this

factor weights in favor of a stay.

2. Stage of Parallel Criminal Investigation

With respect to the status of the parallel criminal investigation, Alaimo and Newsom have

already been indicted. See Def.’s Cert. of Ivancikova at 2. Further, the Prosecutor’s Office is

conducting an ongoing investigation into the underlying criminal matter “and will not release any

information or documents from their...file until after the investigation and any resulting criminal

proceedings are concluded... .” Id. Given the fact that Alaimo and Newsom have already been

indicted and may assert their Fifth Amendment privilege in the underlying criminal matter or in this

civil matter, and given that any of the Served and/or Unserved Defendants may also do the same as

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the underlying criminal matter moves forward or as discoverymoves forward in this civil matter, this

factor also weighs in favor of a stay.

3. Prejudice to Plaintiff

The Court notes that Plaintiff has not submitted any opposition to the Motion. Should the

underlying criminal matter result in conviction of Alaimo or Newsom or a guilty plea by Alaimo or

Newsom, Plaintiff’s case may in fact be bolstered. Should the underlying criminal matter be

dismissed or result in acquittal, Plaintiff’s case will be no worse off than it is presently. Although

the Court acknowledges that Plaintiff’s civil matter may be delayed, given that Plaintiff has not

opposed this Motion, in toto the Court finds that this factor weighs in favor of a stay.

4. Burden on Defendants

With respect to the burden on Served and/or Unserved Defendants, the Court finds that this

factor weighs in favor of a stay. As outlined above, the AG’s Office is unable to complete its

investigation into whether any of the defendants are entitled to representation. Should this civil

matter proceed, Served and/or Unserved Defendants may be placed in the position of waiving their

Fifth Amendment privilege in order to defend this matter and thereby suffer detrimental

consequences in the underlying criminal matter. Oppositely, the underlying criminal matter proceed

against any/all of the defendants, Served and/or Unserved Defendants may be placed in the position

of asserting their Fifth Amendment privilege in order to protect themselves with respect to the

underlying criminal matter and thereby subject themselves to adverse inferences in this civil matter. 

Based upon the information presently available to the Court, neither Served nor Unserved

Defendants have waived their Fifth Amendment privilege. Accordingly, this factor weighs in favor

of a stay.

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5. Interests of the Court

With respect to the interests of the Court, while the Court acknowledges the seeming

inefficiency associated with an indefinite stay given the fact that the underlying criminal matter

remains ongoing, the provision of regular progress updates will minimize the Court’s concern in this

regard. Further, the Court finds that the possibility of Served and/or Unserved Defendants’ assertion

of their Fifth Amendment privilege in response to discovery requests and deposition may “burden

the Court with deciding a constant stream of privilege issues”. Walsh, 7 F. Supp. 2d at 528-29. This

is to say nothing of the possibility of significant liability apportionment issues assuming some

defendants choose to assert their Fifth Amendment privilege while others do not. The Court finds

that this factor weighs in favor of a stay.

6. Public Interest

With respect to the public interest, although Plaintiff may be asked to wait to allow this

litigation to take its course, the Court finds that allowing the underlying criminal matter to come to

a complete, unimpeded conclusion outweighs anyprejudice that may occur as a result of delayin this

matter. Accordingly, the Court finds that this factor weighs in favor of a stay.

IV. CONCLUSION AND ORDER

The Court having considered the papers submitted, and for the reasons set forth above;

IT IS on this 7 day of November, 2011 th

ORDERED that Served Defendants’ Motion to stay this proceeding pending the outcome

of an ongoing criminal investigation, indictment, and proceedings [dkt. entry no. 32] is GRANTED

subject to the Unserved Defendants being served; and it is further

ORDERED that, with respect to Albanese, Newsom, and Alaimo, the AG’s Office is

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directed to provide Plaintiff with each of the Unserved Defendants’ last known addresses and/or the

name of appropriate agents for service together with those agents’ addresses – to the extent that this

information is in the possession of the AG’s Office – by November 11, 2011 in a letter copied to

the Court; and it is further

ORDERED that defense counsel shall provide the Court with progress reports regarding the

criminal investigation on a bi-monthly basis starting January 2, 2012; and it is further

ORDERED that defense counsel shall notify the Court within ten (10) days of any update,

indictment, or disposition of the criminal investigation.

s/ Douglas E. Arpert 

DOUGLAS E. ARPERT

UNITED STATES MAGISTRATE JUDGE

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