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Case: 1:13-cv-02003 Document #: 45 Filed: 11/07/13 Page 1 of 9 PageID #:161

13-2003.131-JCD

November 7, 2013

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHRISTINE ABEL, JOHN ABEL, SR., )
JOHN ABEL, JR., and NICHOLAS ABEL, )
)
)
)
) No. 13 C 2003
)

Plaintiffs,

v.



VILLAGE OF SCHAUMBURG, JOHN CICHY, )
MATTHEW HUDAK, TERRANCE O’BRIEN,
)
ALAN TAKEI, VILLAGE OF HANOVER PARK, )
)
JOSEPH CIANCIO, STEVEN CORTESE,
)
VICTOR DIVITO, STEVEN STOTZ,
MATTHEW MCDONNELL, MARK ATKINSON,
)
)
and DANIEL KOSARTES,
)
)

Defendants.

MEMORANDUM OPINION

Before the court are the motions of defendants Village of

Schaumburg, Matthew Hudak, John Cichy, and Terrance O’Brien to stay

these proceedings until criminal proceedings pending against Hudak,

Cichy, and O’Brien in the Circuit Court of DuPage County are

resolved. For the reasons explained below, the motions are granted

in part and denied in part.

BACKGROUND

This is § 1983 civil-rights action filed by four members of

the Abel family, who live in Schaumburg, Illinois, against the

Villages of Schaumburg and Hanover Park as well as several police

officers from each municipality. Plaintiffs are John Abel, Sr. and

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Christine Abel and their two sons, John Abel, Jr. and Nicholas

Abel; we will refer to them by their first names to avoid

confusion. The individual defendants are Matthew Hudak, John

Cichy, Terrance O’Brien, and Alan Takei, who at the time of the

alleged events were Schaumburg police officers, and Joseph Ciancio,

Steven Cortese, Victor DiVito, Steven Stotz, Matthew McDonnell,

Mark Atkinson, and Daniel Kosartes, who were Hanover Park police

officers.

The complaint, which we take as true for purposes of this

discussion, alleges the following. On March 14, 2012, certain

officers, including Ciancio and Cortese, went to the Abels’ home

looking for a person who no longer lived there. Nicholas and John

Jr. were home when the officers arrived. Nicholas then left via

the back door and was approached by Ciancio and Cortese, who

handcuffed and arrested him, without probable cause or other

justification, and placed him in a police car. Additional police

officers then arrived, including Hudak, Cichy, O’Brien, and Takei,

and then entered and searched the Abels’ home without a warrant or

justification. By that time, John Jr. had left the home, so no

plaintiff was present in the home at the time of the search.

Christine then came home; the officers would not let her

inside, nor would they allow her to speak with Nicholas. Hudak,

among other officers, asked her for consent to search the home;

when she replied that she wanted to consult a lawyer, he threatened

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that if she refused consent, the officers would get a search

warrant, enter the home, and “fuck it up.” Christine called a

lawyer, and after speaking with the lawyer, refused consent. At

some point during this time period, John Sr. came home.

Some of the defendant officers, including Cortese and Hudak,

then proceeded to obtain a search warrant for the home. A number

of police officers--nearly all of the defendants--then searched the

home again. During the search, the officers caused property damage

and seized money that belonged to plaintiffs. The officers

inventoried only some of the money that was seized; they allegedly

stole the rest. 1

Nicholas, Christine, and John Sr. were “taken to” the Hanover

Park police station. (Compl. ¶ 43.) Cortese and DiVito questioned

Nicholas, who denied any illegal conduct. It is alleged that

Ciancio, Cortese, and DiVito caused felony charges for possession

of a controlled substance and possession of cannbis over 500 grams

to be brought against Nicholas, with no probable cause. These

charges were dismissed at Nicholas’s bond hearing.

During this same time period, at or near 285 Mayfair Lane in

Schaumburg, Morales and Stotz arrested John Jr., who had left the

2

Abel home when officers first arrived. The officers took John Jr.

1/

It is further alleged that the defendant officers “seized and converted
approximately $4,000.00” of plaintiffs’ money; it is unclear whether this is the
total amount of money that was seized or the amount that is alleged to have been
stolen.

2/

The complaint does not explain whose address this is.

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to the ground, fracturing his hand. He was brought to the Hanover

Park police station, where he was interrogated by Cortese and

DiVito. John Jr. requested medical treatment, which Cortese and

DiVito denied. Ciancio, Cortese, and DiVito then caused multiple

felony charges for drug-related offenses to be brought against John

Jr.

It is alleged that the defendant officers “conspired and acted

together to cover up” several things: (1) “the illegal and

unauthorized search and entry of” the Abel home; (2) “the illegal

seizure of” plaintiffs’ cash; and (3) the false arrest of, and

false criminal charges brought against, Nicholas. According to

plaintiffs, the defendant officers agreed to falsify police

reports, criminal complaints, and other documents and agreed to

testify falsely, consistently with the falsified documents, and

gave false and incomplete versions of the events to other officers

in order to cover up their own misconduct.

The complaint contains eight counts: Nicholas’s § 1983 claim

against Ciancio and Cortese for false arrest (Count I); Nicholas’s

state-law claim against Ciancio, Cortese, and DiVito for malicious

prosecution (Count II); all plaintiffs’ § 1983 claim against all

defendants for illegal search of their home (Count III); all

plaintiffs’ § 1983 claim against all defendants for illegal seizure

of property (Count IV); John Jr.’s § 1983 claim against Cortese and

DiVito for denial of medical attention (Count V); all plaintiffs’

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§ 1983 claim against all defendants for civil conspiracy (Count

VI); Nicholas’s respondeat superior claim against Hanover Park

(with regard to his malicious prosecution claim) (Count VII); and

all plaintiffs’ indemnification claim against Hanover Park and

Schaumburg. Plaintiffs seek compensatory and punitive damages as

well as attorneys’ fees and costs.

Schaumburg has filed a motion, which Hanover Park joins, to

stay this matter. Defendants Hudak, Cichy, and O’Brien have filed

a separate motion to stay, which asserts similar arguments. The

motions are based on the fact that shortly before plaintiffs filed

their complaint, the DuPage County State’s Attorney’s Office had

indicted Hudak, Cichy, and O’Brien on seventeen felony charges that

include theft, burglary, unlawful drug conspiracy, unlawful

delivery of controlled substances, armed violence, and official

misconduct. Schaumburg seeks a stay of the entire case “until the

resolution of” the criminal case, Schaumburg’s Mot. at 1, or, in

the alternative, “a limited stay with respect to the claims”

against Schaumburg and its officers, “while allowing discovery to

proceed as against the Village of Hanover Park defendants,”

Schaumburg’s Mot. at 6 n.3.

DISCUSSION

Determining whether to grant a stay because of parallel

criminal litigation involves balancing the interests of the parties

and the public. The non-exclusive factors considered by courts in

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this district include the following: “(1) whether the civil and

criminal matters involve the same subject; (2) whether the

governmental entity that has initiated the criminal case or

investigation is also a party in the civil case; (3) the posture of

the criminal proceeding; (4) the effect on the public interest of

granting or denying a stay; (5) the interest of the civil plaintiff

in proceeding expeditiously, and the potential prejudice the

plaintiff may suffer from a delay; and (6) the burden that any

particular aspect of the civil case may impose on defendants if a

stay is denied.” Cruz v. City of Chicago, No. 08 C 2087, 2011 WL

613561, at *2 (N.D. Ill. Feb. 15, 2011) (citing Chagolla v. City of

Chicago, 529 F. Supp. 2d 941, 945 (N.D. Ill. 2008) and Cruz v.

County of DuPage, No. 96 C 7170, 1997 WL 370194, at *2 (N.D. Ill.

June 27, 1997) (citing cases)). “The proponent of a stay bears the

burden of establishing its need.” Clinton v. Jones, 520 U.S. 681,

708 (1997).

We believe that these factors weigh in favor of staying this

case as to the Schaumburg defendants and allowing the case to

proceed as to the Hanover Park defendants. It is not clear that

the pending state criminal case involves the particular incidents

with the Abel family, but it does involve the same type of alleged

misconduct. Hudak, Cichy, and O’Brien are charged in the criminal

case with, among other things, illegally searching and falsely

arresting people in furtherance of a scheme to skim drugs and

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money. Plaintiffs point out that they are not listed as possible

witnesses in the State’s disclosures to defendants in the criminal

case and that the State is not a party to this case. It is

conceivable, however, that the misconduct upon which plaintiffs’

complaint is based could be part of the State’s case against the

three defendants. Hudak, Cichy, and O’Brien’s alleged misconduct

is also relevant to the indemnification claim asserted against

Schaumburg in this case. And although defendant Alan Takei is the

only Schaumburg officer in this case who has not been indicted, a

stay as to the other Schaumburg defendants should, for reasons of

practicality, include Takei.

The predominant consideration is the burden that this case

would impose on Hudak, O’Brien, Cichy, and Schaumburg if a stay is

denied. To avoid waiving their Fifth Amendment privilege against

self-incrimination in the criminal case, Hudak, O’Brien, and Cichy

would have to assert the privilege in this case, but that would

permit an adverse inference to be drawn. See Baxter v. Palmigiano,

425 U.S. 308, 318 (1976). Moreover, pursuant to these defendants’

bond conditions in the criminal case, they cannot communicate with

each other, which could impede their ability to defend this case.

The public interest also favors a stay. As noted by some of our

colleagues in similar civil-rights cases currently pending in this

court against Hudak, O’Brien, and/or Cichy (nearly all of which

have been stayed), while the public may have an interest in the

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prompt resolution of civil litigation, it has a significant

interest in seeing that criminal proceedings are not tainted by

parallel civil proceedings. See Altom v. Vill. of Schaumburg, No.

13 C 1076, Order of May 22, 2013 (Kocoras, J.); Gilbert v. Mir, No.

13 C 2687, Order of July 26, 2013 (Kendall, J).

3

The criminal case was filed in January of this year, two

months before the filing of the instant case. Plaintiffs contend

that the criminal case could last for two years or more, but this

is mere speculation. There is some prejudice to plaintiffs that is

inherent in a delay of this case, but it is not the catastrophic

picture that plaintiffs paint, and this concern does not weigh as

heavily as does the burden upon defendants. Moreover, the

prejudice to plaintiffs will be lessened by permitting discovery to

proceed as to Hanover Park and its officers. We acknowledge that

Hanover Park joins in the Schaumburg defendants’ motions, but it

has offered no reason why discovery cannot proceed as to that

entity and its own defendants, to the extent that the discovery

will not have to be repeated once the stay is lifted as to the

3/

In addition to Gilbert (which has been reassigned from Judge Kendall’s
docket to Judge Ellis) and Altom, the other civil-rights cases pending in this
district against defendants (or a subset of them) that have been stayed are the
following: Thomas v. Hudak, No. 13 C 5684 (Kocoras, J.); Warren v. Cichy, No. 13
C 4928 (Norgle, J.); Nelson v. Village of Schaumburg, No. 13 C 3227 (Leinenweber,
J.) (stay pending as to individual defendants); and Beasley v. Cichy, No. 13 C
1281 (Durkin, J.) (by agreement). A motion for entry of a stay has recently been
filed and is pending in Holmstrom v. Village of Schaumburg, 13 C 5696 (Bucklo,
J). In Miller v. Village of Schaumburg, 13 C 1601 (Shadur, J.), the defendants’
motions for entry of a stay were denied under different circumstances: the
plaintiff agreed not to seek an adverse-inference instruction in the event that
the individual defendants asserted their Fifth Amendment privilege.

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Schaumburg defendants. If necessary, we can revisit a stay of the

case concerning the Schaumburg defendants if discovery is completed

as to the Hanover Park defendants and the criminal case does not

appear to be close to resolution.

CONCLUSION

For the foregoing reasons, the motions of defendant Village of

Schaumburg [30] and defendants Matthew Hudak, John Cichy, and

Terrance O’Brien [32] to stay this matter are granted in part and

denied in part. Discovery is stayed until further order of court

as to defendants Hudak, Cichy, O’Brien, Takei, and the Village of

Schaumburg, and those defendants will not be required to file a

responsive pleading until further order of court. Discovery may

proceed as to defendants Ciancio, Cortese, DiVito, Stotz,

McDonnell, Atkinson, Kosartes, and the Village of Hanover Park. A

status hearing is set for November 20, 2013 at 11:00 a.m. to

discuss a discovery plan as to those defendants.





DATE:

November 7, 2013

ENTER:

_______________________________________________

John F. Grady, United States District Judge