United States District Court, S.D. Indiana, Indianapolis Division
MAJOR P. DAVIS, II, Plaintiff,
CITY OF INDIANAPOLIS, OFFICER NICHOLAS GALLICO, ESTATE OF OFFICER PERRY RENN, Defendants.
ENTRY STAYING ACTION PENDING RESOLUTION OF THE
WALTON PRATT, JUDGE United States District Court
has now appeared for all parties in this
action. Having achieved service to the extent
possible, and consistent with the Entry of September 27,
2016, which granted the defendants' motion to stay, this
action is now STAYED on the docket. This action will not be
developed until the murder charges now pending against
plaintiff Major P. Davis, II, in the Marion Superior Count
titled State of Indiana v. Major Davis, Cause Number
49G02-1407-MR-034656, are resolved. The plaintiff's
objections to this ruling [dkt. 43] are overruled.
Court's prior order suggested that such a stay is
warranted under Heck v. Humphrey, 512 U.S. 477
(1994). In Heck, the Supreme Court held that a
plaintiff may not recover damages under 42 U.S.C. § 1983
when a judgment in his favor would necessarily imply the
invalidity of a criminal conviction or sentence that has not
been reversed, expunged, invalidated, or otherwise called
into question. See id. at 486-87; Helman v.
Duhaime, 742 F.3d 760, 762 (7th Cir. 2014).
Heck “forbids a prisoner in his civil rights
case to challenge a finding in his criminal or
prison-discipline case that was essential to the decision in
that case; if he insists on doing that, the civil rights case
must be dismissed.” Moore v. Mahone, 2011 WL
2739771, *1 (7th Cir. 2011) (citing Okoro v.
Callaghan, 324 F.3d 488, 490 (7th Cir. 2003). However,
“Heck does not apply absent a
conviction.” Gakuba v. O'Brien, 711 F.3d
751, 753 (7th Cir. 2013) (citing Wallace v. Kato,
549 U.S. 384, 393-94 (2007); and Evans v. Poskon,
603 F.3d 362, 363 (7th Cir. 2010)).
case there has been no conviction and the criminal case is
ongoing. Instead, the doctrine at issue is Younger v.
Harris, 401 U.S. 37 (1971). Younger holds that
federal courts must abstain from taking jurisdiction over
federal constitutional claims that may interfere with ongoing
state proceedings. Gakuba, 711 F.3d at 753. In
Wallace v. Kato, 549 U.S. 384 (2007), the Supreme
Court explained, that if a plaintiff files a civil claim
“before he has been convicted (or files any other claim
related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of the
district court, and in accord with common practice, to stay
the civil action until the criminal case or the likelihood of
a criminal case is ended.” Id. at 393-94
(citing Heck, 512 U.S. at 487-488, n. 8, (noting
that “abstention may be an appropriate response to the
parallel state-court proceedings”); and Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 730 (1996).
action is stayed until the criminal case has ended. This is
appropriate because Mr. Davis' claims for damages involve
constitutional issues that may be litigated during the course
of his criminal case and deciding those issues in federal
court could undermine the state court proceeding. In
addition, Mr. Davis' allegations are in direct
contradiction to his pending criminal charges for the murder
of Officer Renn. For example, if Mr. Davis is convicted of
shooting and killing Officer Renn, then the allegation that
Mr. Davis was unarmed must be rejected.
Davis states that even if he is found guilty of murdering
Officer Renn his claims are not barred because everything
happened after any committed crime. Dkt. 43 at p. 3. But if
this is true, then his claim of excessive force by
Indianapolis Metropolitan Police Officers (shooting at the
plaintiff) cannot succeed because if the plaintiff shot at
the officers, then it was reasonable for the officers to
shoot back. Similarly, a claim against the City of
Indianapolis for hiring the officers or failing to train the
officers requires the plaintiff to prove that the City's
failure caused the plaintiff's injuries and if the
plaintiff shot at the officers, he (not the City) is
necessarily responsible for his injuries. Finally, in Indiana
the tort of intentional infliction of emotional distress is
defined as occurring when “one who by extreme and
outrageous conduct intentionally or recklessly causes severe
emotional distress to another.” Williams v.
Tharp, 914 N.E.2d 756, 769 (Ind. 2009) (quoting
Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991)).
Again, there is no plausible theory of liability if Mr. Davis
shot at Officer Renn and the officers shot back. Under this
scenario the harm was caused by the plaintiff and not by the
officers' outrageous conduct. If the plaintiff can
articulate a theory of his claims based on factual
propositions which would not contradict a murder conviction
then the court will reconsider this ruling.
“the plaintiff is ultimately convicted, and if the
stayed civil suit would impugn that conviction, Heck
will require dismissal; otherwise, the civil action will
proceed, absent some other bar to suit.”
Wallace, 594 U.S. at 394 (citing Edwards v.
Balisok, 520 U.S. 641, 649 (1997); Heck, 512
U.S., at 487). In addition, staying rather than dismissing
this action is to the benefit of the plaintiff because
monetary relief is not available to him in his defense of
criminal charges and because his claims may become
time-barred by the time the state prosecution has concluded.
Gakuba, 711 F.3d at 753. In addition, the
circumstances at issue occurred on July 5, 2014, at 9:23 p.m.
Thus, given Indiana's 2-year statute of limitation period
for actions brought pursuant to 42 U.S.C. § 1983 it is
too late for the plaintiff to name a new party to this action
and a stay will not prejudice Mr. Davis in this regard.
Finally, if Mr. Davis is acquitted of the murder charge, the
stay will be lifted and he may proceed with this claims in
parties' are directed to notify this Court when final
judgment has been entered in the criminal case within 14 days
of the date the criminal judgment is entered. The court will
then reopen this action on the docket and direct further
 The court notes that the entity
“Estate of Officer Perry Renn” may not exist for
the reasons explained by counsel in the Notice of Appearance
filed October 6, 2016. The Court appreciates ...