United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM AND OPINION ORDER
Lindsay, Magistrate Judge
the Court are two motions - a motion filed by defendant Todd
Harwood (“Harwood”) to stay District Court
proceedings (DN 34) pending the resolution of his petition
for Writ of Certiorari and a motion to quash a subpoena
duces tecum (DN 36) by a former defendant, the
Kentucky State Police (“KSP”). Oral arguments
were held on November 1, 2017. For the following reasons, the
Court DENIES Harwood's motion to stay
proceedings. Because the merits of KSP's motion to quash
rest on entirely different law, the Court will issue a
separate ruling on KSP's motion.
Factual Background and Procedural History
action has its roots in a 2006 investigation and purported
resolution of a cold case. (DN 1, #6.) In November 1998,
police pulled the body of Kyle Breeden
(“Breeden”) out of the Kentucky River near Gratz,
Kentucky. (Id.) Breeden had been shot twice in the
back of the head with a gun capable of chambering .22 caliber
rounds and had his legs bound with a guitar amplifier cable
before being thrown into the river. (Id.) Although
Breeden's ex-girlfriend, the electric guitar player Susan
King (“King”), was among the suspects the police
investigated, they could not obtain a search warrant of
King's home. (Id. at 7-8.) At the time, no one
was arrested for Breeden's murder. (Id. at 7-8.)
The case sat dormant for nearly seven years until 2006, when
it was assigned to detective Harwood. King v.
Harwood, 852 F.3d 568, 572 (6th Cir. 2017).
promptly obtained a search warrant of King's home - and
subsequently a second - using information similar to the
information with which the police had failed to obtain a
warrant years prior. (DN 1, #8); King, 852 F.3d at
574. The evidence obtained from warrants included bullet
holes in King's kitchen floor made by .22 caliber rounds
and over one hundred twenty-five bullets recovered from a
tree in King's backyard. (DN 1, #11); King, 852
F.3d at 574. Based on the warrants' results, Harwood
testified before a grand jury to obtain an indictment against
King for Breeden's murder, and according to King, gave
false testimony. (DN 1, #12); King, 852 F.3d at 575.
Such “false testimony” included a failure to
mention King's amputated leg and that several ballistics
analyses of the bullets recovered from King's home did
not provide conclusive evidence that she murdered Breeden.
(DN 1, #12); King, 852 F.3d at 575. The grand jury
indicted King for Breeden's murder. At a subsequent grand
jury hearing at which Harwood also testified, King was also
indicted for tampering with physical evidence. (DN 1, #13);
King, 852 F.3d at 575. In 2008, King entered an
Alford plea, under the terms of which she was
sentenced to ten years of incarceration. King, 852
F.3d at 575.
2012, a known murderer named Richard Jarrell
(“Jarrell”) allegedly confessed to a Louisville
Metro Police (“LMPD”) detective that he was the
one who had killed Breeden. (DN 1, #16); King, 852
F.3d at 575-76. Harwood met with Jarrell, who later recanted
his purported confession; King alleges that Harwood
intimidated Jarrell into the retraction. (DN 1, #17-18);
King, 852 F.3d at 576. Nevertheless, the LMPD
detective to whom Jarrell had allegedly confessed forwarded a
copy of Jarrell's confession to the Kentucky Innocence
Project, which began work on attempting to overturn
King's conviction. King, 852 F.3d at 576.
King's claim worked its way up to the Kentucky Court of
Appeals which, in July 2014, vacated King's
Alford plea. Id. See also King v.
Com., 2014 WL 3547480 (Ky. Ct. App. July 18, 2014). The
criminal case against King was formally terminated on October
9, 2014. King, 852 F.3d at 576.
filed the instant action under 42 U.S.C. § 1983 on
October 1, 2015, alleging malicious prosecution under the
Fourth Amendment and other charges against Harwood, the KPS,
several of Harwood's supervisors, and other related
parties. (DN 1.) On June 1, 2016, this Court granted the
defendants' motion for summary judgment on the grounds
that (1) King's claims were time-barred by the one year
statute of limitations, and alternatively, that (2) all
defendants were entitled to qualified immunity.
King, 852 F.3d at 576-77. See also King v.
Hardwood, 2016 WL 309044 (W.D. Ky. June 1, 2016).
appeal, the Sixth Circuit reversed this Court's opinion
in part and affirmed it in part. First, it determined that
the one year statute of limitations had begun to run on the
day the criminal charges were formally dismissed (October 9,
2014), so King's complaint was not time-barred.
King, 852 F.3d at 578-79. Second, it held that
Harwood did not have absolute immunity protecting him from
suit by King, as Harwood's actions exceeded the conduct
that the United States Supreme Court held was protected in
Rehberg v. Paul, 556 U.S. 356 (2012), a case
concerning the scope of testimonial immunity at grand jury
proceedings. King, 852 F.3d at 587-90. Formulating a
new exception to the long-held rule that a grand jury
indictment creates an unrebuttable presumption of probable
cause, the Sixth Circuit held:
[W]here (1) a law-enforcement officer, in the course of
setting a prosecution in motion, either knowingly or
recklessly makes false statements (such as in affidavits or
investigative reports) or falsifies or fabricates evidence;
(2) the false statements and evidence, together with any
concomitant misleading omissions, are material to the
ultimate prosecution of the plaintiff; and (3) the false
statements, evidence, and omissions do not consist solely of
grand-jury testimony or preparation for that testimony (where
preparation has a meaning broad *588 enough to encompass
conspiring to commit perjury before the grand jury), the
presumption that the grand-jury indictment is evidence of
probable cause is rebuttable and not conclusive
Id. at 587-88. The Sixth Circuit found that at the
present stage of litigation, King had satisfied its new test,
and it remanded the case back to this Court for further
proceedings on King's §1983 malicious prosecution
and state law claims. Id. at 591-92. It did,
however, affirm this Court's grant of summary judgment in
favor of the defendants for King's claims against all
defendants other than Harwood, including KSP. Id. at
filed his petition for Writ of Certiorari to the United
States Supreme Court on August 15, 2017. (DN 32). He then
filed the present motion to stay the proceedings before this
Court, pending the outcome of his Writ, on September 7, 2017.
(DN 34.) The next day, King emailed KSP's counsel notice
that she had mailed a subpoena duces tecum to KSP.
Despite a request from KSP to stay the subpoena pending
action by the Supreme Court, King insisted on a response. (DN
36, #454.) On October 10, KSP filed a motion to quash
King's subpoena, mostly arguing that it should be quashed
pending potential Supreme Court review. (DN 36.)
Summary of Law
power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes in
its docket with economy of time and effort for itself, for
counsel, and for litigants, and the entry of such an order
ordinarily rests with the sound discretion of the District
Court.” F.T.C. v. E.M.A. Nationwide, Inc., 767
F.3d 611, 626-27 (6th Cir. 2014) (quoting Ohio Envtl.
Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div.,
565 F.2d 393, 396 (6th Cir.1977)). Indeed, Districts Courts
ordinarily have the authority to issue stays where those
stays would be a valid exercise of their discretion. Ryan
v. Gonzales, 568 U.S. 57, 76 (2013) (citing Rhines
v. Weber, 544 U.S. 269, 276 (2005)). The burden is on
the moving party to show that there is a pressing need for
delay and that neither the other party nor the public will
suffer harm for the entry of the order. Mobley v. City of
Detroit, 938 F.Supp.2d 688, 690 (E.D. Mich. 2013)
(citing Ohio Envtl. Counsel, 565 F.2d at 396)).
litigant asks the District Court for a stay pending a
petition for Writ of Certiorari, the litigant must
demonstrate: (1) a reasonable probability that four Justices
would vote to grant certiorari; (2) a significant possibility
that the Supreme Court would reverse the judgment below; and
(3) a likelihood of irreparable harm, assuming the
correctness of the litigant's position, if the judgment
is not stayed. U.S. v. Mandyzcz, 321 F.Supp.2d 862,
864 (E.D. Mich. 2004) (citing Packwood v. Senate Select
Comm. on Ethics, 510 U.S. 1319, 1319-20 (1994)
(Rhenquist, J., in chambers)). A demonstration of each of the
three factors is required. Mandyzcz, 321 F.Supp.2d
at 866 (quoting Packwood, 114510 U.S. at 1319-20)).
Even if a litigant satisfies all three elements, a stay may
still be denied when the equities do not weigh in favor of
the stay. Barnes v. E-Systems, Inc. Group Medical &
Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia,
J., in chambers).
Court will examine each element in turn to determine if
Harwood has met his burden.
Reasonable Probability That Four Justices Would Vote to Grant
faced with the question of whether there is a reasonable
probability that four justices would grant certiorari,
District Courts in this circuit have looked to Rule 10 of the
U.S. Supreme Court Rules for guidance. F.D.I.C. v. First
American Title Ins. Co., 2015 WL 418122 (E.D. Mich. Jan.
30, 2015) at *3. Rule 10 provides guidance to litigants as to
what the Supreme Court justices ...