United States District Court, S.D. Georgia, Dublin Division
ABE B. HOLMES, Plaintiff,
MR. HALLETT, Correctional Officer, and MR. MOSLEY, Correctional Officer, Defendants.
K. EPPS, UNITED STATES MAGISTRATE JUDGE
the Court are Plaintiff's motions to strike, (doc. nos.
41, 44), and Defendant Mosley's motion to stay and motion
for leave to file an amended answer, (doc. Nos. 46, 47). For
the reasons stated below, the Court DENIES AS
MOOT Plaintiff's motions to strike, (doc. nos.
41, 44), GRANTS Defendant Mosley's
motion for leave to file an amended answer, (doc. no. 47),
and ORDERS Defendant Mosley to supplement
his motion to stay within fourteen days of this Order.
DEFENDANT'S MOTION FOR LEAVE TO FILE AN AMENDED ANSWER
AND PLAINTIFF'S MOTIONS TO STRIKE
November 30, 2018, Defendant Mosley filed a one-page pro
se answer to Plaintiff's amended complaint. (Doc.
no. 34.) On December 27, 2018, defense counsel filed a notice
of appearance on behalf of Defendant Mosley, and, on January
10, 2019, Defendant Mosley, through counsel, filed a motion
for leave to file an amended answer. (Doc. nos. 42, 47.)
Defendant Mosely, though counsel, explained he was no longer
employed by Georgia Department of Corrections
(“GDOC”) at the time he was served and did not
understand he could have notified GDOC to arrange for
representation and filed a pro se answer.
(Id. at 1-2.) Once the Attorney General's office
learned of the case, they appointed counsel for Defendant
motion for leave to amend, Defendant Mosley states he is
facing criminal charges relating to the subject matter of
Plaintiff's complaint and wishes to amend his answer to
ensure “no argument can be made that [he] waived his
Fifth Amendment rights against self-incrimination.”
(Doc. no. 47-1, p. 2.) Defendant Mosley contends Plaintiff
will not incur prejudice as result of the amendment.
(Id. at 3-4.)
Federal Rule of Civil Procedure 15(a), a party may amend a
pleading more than twenty-one days after serving it
“with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). Courts
should freely allow amendment. See Carter v. Broward Cty.
Sheriff's Dep't Med. Dep't, 558 Fed.Appx.
919, 923 (11th Cir. 2014) (citing Forman v. Davis,
371 U.S. 178, 182 (1962)); see also Fed.R.Civ.P.
15(a)(2) (“The court should freely give leave when
justice so requires.”). However, “[a] . . . court
may deny such leave where there is substantial ground for
doing so, such as undue delay, bad faith, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, and futility of the
amendment.” Muhammad v. Sapp, 494 Fed.Appx.
953, 958 (11th Cir. 2012) (quoting Reese v. Herbert,
527 F.3d 1253, 1263 (11th Cir. 2008)).
Mosley first obtained representation on December 27, 2018,
and filed his motion to amend on January 10, 2018. Because
defense counsel acted promptly following his appointment in
moving the Court to allow Defendant Mosley to amend his
answer, there is no indication the motion was made for
purposes of undue delay or bad faith. Indeed, Defendant
Mosley indicates the primary purpose of the amendment is to
protect his Fifth Amendment right against self-incrimination.
Furthermore, Plaintiff will not suffer prejudice by allowing
the amended answer. Thus, no substantial ground exists for
not allowing Defendant Mosley to amend his answer.
Accordingly, the Court GRANTS Defendant
Mosley's motion for leave to file an amended answer,
(doc. no. 47), DIRECTS the Clerk to docket
Defendant's amended answer, (doc. no. 47-3, pp. 2-8), as
a stand-alone entry on the docket, and
DIRECTS Defendant Mosley to serve the
amended answer on Plaintiff within seven days of this Order.
Plaintiff filed two motions to strike Defendant Mosley's
initial answer, arguing the Court should strike the answer
because it was not properly served on Plaintiff and had no
certificate of service. (Doc. nos. 41, 44.) Pursuant to
Federal Rule of Civil Procedure 12(f), “[t]he court may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Plaintiff does not argue any portion of
Defendant Mosley's initial answer included an
insufficient defense or other inappropriate matters; he only
objects to Defendant Mosley's improper service of the
answer. However, because the Court has allowed Defendant
Mosley to file an amended answer and has directed Defendant
Mosley to serve it on Plaintiff, the Court DENIES AS
MOOT Plaintiff's motions to strike. (Doc. nos.
DEFENDANT MOSLEY'S MOTION TO STAY
January 10, 2019, Defendant Mosley filed a motion to stay
this case until the related criminal charges against him are
resolved. (Doc. no. 46.) Defendant Mosley stated he is
currently “under indictment for crimes related to the
same facts as this civil suit.” (Doc. no. 46-1, p. 1.)
Defendant Mosley argues the pending criminal action will
interfere with his ability to defend himself in this action
because he will be forced to invoke his Fifth Amendment
privilege against self-incrimination and will not be able to
respond to discovery requests, which will create adverse
inferences against him. (Id. at 2-3.) Defendant
Mosley further argues he has retained counsel in the criminal
case, and the related nature of the cases will require
consultation between his civil and criminal attorneys, which
will increase the cost of his criminal defense. (Id.
at 4.) Finally, Defendant Mosley argues the stay will not
harm Plaintiff or the public interest. (Id.)
has the power to stay a civil proceeding due to an active
parallel criminal investigation. SEC v. Healthsouth
Corp., 261 F.Supp.2d 1298, 1326 (N.D. Ala. 2015).
“[A] court must stay a civil proceeding pending
resolution of a related criminal prosecution only when
‘special circumstances' so require in the
‘interests of justice.'” United States v.
Lot 5, Fox. Grove, Alachua Cty., Fla., 23 F.3d 359, 364
(11th Cir. 1994) (quoting United States v. Kordel,
397 U.S. 1, 12, n.27) (1970)). However, “a court may
deny the stay so long as invoking the privilege against
self-incrimination ‘does not compel an adverse judgment
against the claimant.'” Vallambrosa Plantation,
LLC v. Sikorsky, CV 415-202, 2015 WL 5604364, at *2
(S.D. Ga. Sept. 21, 2015) (quoting Lot 5 Fox. Grove,
Alachua Cty., Fla, 23 F.3d at 364).
courts within the Eleventh Circuit consider the following
factors in determining whether the interests of justice
require a stay: (1) the extent to which the defendant's
Fifth Amendment rights are implicated; (2) the interest of
the plaintiff in proceeding expeditiously with this
litigation and the potential prejudice to the plaintiff from
delay; (3) the burden any particular aspect of the
proceedings may impose on the defendant; (4) the efficient
use of judicial resources; (5) the interests of persons not
parties to the civil litigation; (6) the interests of the
public in the pending civil and criminal litigation; (7) the
extent the issues in the civil and criminal cases overlap;
and (8) the status of the criminal case, including whether
the defendant has been indicted. S.E.C., 261
F.Supp.2d at 1326; Dean v. Douglas, No. 5:12-CV-120,
2012 WL 61501137, at *3 (M.D. Ga. Dec. 11, 2012). However,
the most important issue is the extent to which the issues in
the simultaneous proceedings overlap. S.E.C., 261
F.Supp.2d at 1326; Vallambrosa Plantation, LLC, 2015
WL 5604364 at *2.
Mosley states he is “under indictment for crimes
related to the same facts as this civil suit” and
provides an exhibit showing he was indicted by a grand jury
in Johnson County, Georgia on June 18, 2018, with one count
of violation of oath by a public officer, two counts of
simple battery, and one count of making a false statement.
(Doc. no. 46-1, p. 1; doc. no. 46-2.) However, the Court
cannot ascertain the degree to which the facts and issues in
the proceedings overlap because Defendant Mosley has not
provided a detailed description of the conduct which forms
the basis of the indictment. In particular, there is no
indication Defendant Mosley was indicted based on the alleged
conduct toward Plaintiff as opposed to another inmate.
the Court ORDERS Defendant Mosley to
supplement his motion with additional information about the
criminal case within fourteen days of the date of this Order.
Plaintiff shall have fourteen days from the date Defendant