REPORT AND RECOMMENDATION
THOMAS B. SMITH, Magistrate Judge.
Pending before the Court is Defendants' Motion to Dismiss Luis Fernando Cabeza's Claims Due to His Refusal to Participate in Discovery, or in the Alternative, to Compel the Deposition of Luis Fernando Cabeza, or to Stay the Case (Doc. 30). Upon due consideration I respectfully recommend that the motion be granted in part and denied in part.
Background
Plaintiff Luis Fernando Cabeza, his family and friends arrived at a local Orlando bar around midnight on December 30, 2011 (Doc. 2, ¶¶ 18-19). After about an hour and a half, Luis and a friend left the bar (Id., ¶ 20). Upon their return, they were denied admission at which point, they left again (Id., ¶ 21). Luis returned to the bar alone and asked if he could be admitted to gather his family so that they might leave (Id., ¶ 22). He was refused entry and the person at the door summoned an off-duty Orlando police officer who working security at the establishment (Id., ¶ 23). The police officer told Luis to leave and he complied (Id.). Luis returned to the bar again and this time, he was admitted (Id., ¶ 24). Then, Luis' friend attempted to re-enter the bar, and Luis tried to help him (Id., ¶ 25). The police officer was present when Luis went to the door to assist his friend (Id., ¶ 26). What happened next is in dispute but it ended with Luis being placed under arrest for battery on a law enforcement officer, resisting arrest with violence, and trespass after warning (Id., ¶ 33). The police also arrested his brother, Plaintiff Miguel Cabeza for battery on a law enforcement officer and resisting arrest with violence (Id., ¶ 34). Luis and Miguel both allege that the police used excessive and unreasonable force and gave them unwarranted physical beatings (Id., ¶¶ 27-29). Plaintiffs filed this lawsuit in state court on November 22, 2013, alleging battery and violations of 42 U.S.C. § 1983 (Id.). Defendants removed the case to this Court on December 18, 2013 (Doc. 1). Criminal charges were filed against Luis and remain pending in state court. Defendants seek dismissal of this case on the ground that Luis is refusing to participate in discovery (Doc. 30). Specifically, at this deposition, Luis invoked his Fifth Amendment privilege against self-incrimination in response to 30 questions asked by Defendants' counsel (Doc. 30 at 6). In the alternative, Defendants ask the Court to compel Luis to answer their questions, or stay this case pending the resolution of the criminal charges (Id.).1
Discussion
The Federal Rules of Civil Procedure "strongly favor full discovery whenever possible." Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Federal Rule of Civil Procedure 26(b)(1) allows parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." "The fifth amendment privilege against self-incrimination `protects a person ... against being incriminated by his own compelled testimonial communications.'" United States v. Argomaniz, 925 F.2d 1349, 1352 (11th Cir. 1991) (quoting Fisher v. United States, 425 U.S. 391, 409 (1976)). The privilege "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.'" Id. at 1352-53; Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1086 (5th Cir. 1979)2 ("The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection."). It only applies where the individual has a legitimate risk of criminal liability. Argomaniz, 925 F.2d at 1353; see also Wehling, 608 F.2d at1086 (The Fifth Amendment is a "shield to any party who fear[s] that complying with discovery would expose him to a risk of self-incrimination.").
As a general rule, the party asserting the privilege may not use it as both a shield and a sword. Wehling, 608 F.2d at 1087. The court must consider the competing constitutional and procedural rights of all parties to the action, and to dismiss a case in response to a Plaintiff's valid assertion of the privilege, in the presence of "other, less burdensome, remedies" would violate the Constitution. Id. at 1088-89.3 In any event, the court bears the responsibility to "make a proper inquiry into the legitimacy and scope of the witness' assertion of his Fifth Amendment privilege. A blanket assertion of the privilege without inquiry by the court is unacceptable." United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980); Argomaniz, 925 F.2d at 1356. To that end, the "court must review the assertions of privilege on a question-by-question basis." Argomaniz, 925 F.2d at 1355. Now, the Court considers Luis' claims of privilege as follows:
Assertion of Privilege Location - Recommended
Doc. 30-1 Ruling
Q. Did you have any trouble understanding any Page 9, lines 18-22 Sustained
instructions from Officer Dantes on December 23,
2011?
A. I'm going to use, assert my Fifth.
THE INTERPRETER: I'd like to exercise my Fifth
Amendment, right
Q. It's my understanding that you left the club at some Page 22, lines 24-25 Sustained
point and tried to return, is that correct?
[A]. I'm invoking my Fifth Amendment privilege. Page 23, lines 1-2
Q. I need to ask a series of questions here. Did you Page 23, lines 6-9 Sustained
try to reenter the Blue Martini after being told you
were trespassed?
A. I am invoking my Fifth Amendment privilege.
Q. Did Officer Dantes tell you that you had been Page 23, lines 10-13 Sustained
trespassed from the Blue Martini lounge and that you
were to leave the premises?
A. I am invoking my Fifth Amendment privilege.
Q. Did you remain on the Blue Martini premises after Page 23, lines, 14-17 Sustained
being told that you had been trespassed by the Blue
Martini bouncer?
A. I am invoking my Fifth Amendment privilege.
Q. Did you remain on the premises of the Blue Martini Page, 23, lines 18-21 Sustained
lounge after being told that you had been trespassed
by Officer Dantes?
A. I am invoking my Fifth Amendment privilege.
Q. What was the substance of the conversations that Page 23, lines 22-25 Sustained
you had with officer at that [sic] Dantes on December
29, 2011?
A. I am invoking my Fifth Amendment privilege.
Q. Did you kick Officer Dantes' baton on December Page 24, lines 4-6 Sustained
29, 2011?
A. I am invoking my Fifth Amendment privilege.
Q. Did you see your brother try to wrestle the taser out Page 24, lines 7-11 Sustained
of Officer Dantes' hand on December 29, 2011?
[Counsel]: Object to form,
A. I am invoking my Fifth Amendment privilege.
Q. Do you recall standing up after Officer Dantes tried Page 25, lines 3-5 Sustained
to get you in handcuffs?
A. I am invoking my Fifth Amendment privilege.
Q. Do you recall Officer Dantes telling you to get on Page 25, lines 6-8 Sustained
the ground and you remain standing?
A. I am invoking my Fifth Amendment privilege.
Q. Do you recall Officer Dantes striking you with the Page 25, lines 9-11 Sustained
baton and you continued to stand up?
A. I am invoking my Fifth Amendment privilege.
Q. Did you ever submit to Officer Dantes and put your Page 25, lines 12-15 Sustained
hands behind your back so that you could be
handcuffed?
A. I am invoking my Fifth Amendment privilege.
Q. Did you ever comply with any commands that were Page 25, lines 16-18 Sustained
given to you by Officer Dantes?
A. I am invoking my Fifth Amendment privilege.
Q. How many times were you told by Blue Martini staff Page 25, lines 19-21 Sustained
that you were not allowed to reenter the club?
A. I am invoking my Fifth Amendment privilege.
Q. Do you know if Miguel was trespassed from the Page 25, lines 22-25 Sustained
Blue Martini?
[Counsel]: Object to form. Page 26, line 1
A. I am invoking my Fifth Amendment privilege.
Q. Did Miguel ever tell you that he tried to grab the Page 26, lines 3-5 Sustained
taser from Officer Dante's hand?
A. I am invoking my Fifth Amendment privilege.
Q. Did you hear any commands Officer Dantes gave Page 26, lines 6-8 Overruled
to your brother Miguel?
A. I am invoking my Fifth Amendment privilege.
Q. Did you physically resist Officer Dantes' efforts to Page 26, lines 21-23 Sustained
put handcuffs on you on December 29, 2011?
A. I am invoking my Fifth Amendment privilege.
Q. How many officers did it take to finally get you in Page 26, lines 24-5 Sustained
handcuffs?
A. I am invoking my Fifth Amendment privilege. Page 27, line 1
Q. Anything else that you were required to do? Page 29-, lines 2-5 Sustained
A. And write a letter of apology to the police.
Q. Have you done that yet?
A. I am invoking my Fifth Amendment privilege.
Q. Have you watched any of the surveillance videos Page 35, lines 19-24 Sustained
depicting the incident?
A. Yes, all.
Q. And do they accurately depict what occurred on
that evening?
A. I am invoking my Fifth Amendment privilege.
Q. Do you have any reason to dispute the authenticity Page 35, line 25 Sustained
of the videos which you've seen?
A. I am invoking my Fifth Amendment privilege. Page 36, lines 1-2
Q. Did you report any injuries to the nurse [at the Page 45, lines 15-16 Sustained
Orange County Jail on December 30, 2011]?
A. I am invoking my Fifth Amendment privilege.
Q. Did you report any injuries to the nurse you saw at Page 47, lines 2-4 Sustained
the holding facility in Miami?
A. I am invoking my Fifth Amendment privilege.
Q. Do you know why you were trespassed from the Page 48, lines 13-15 Sustained
Blue Martini on December 29, 2011?
A. I am invoking my Fifth Amendment privilege.
Q. Was anybody else from your family trespassed on Page 48, lines 16-18 Sustained
December 29, 2011?
A. I am invoking my Fifth Amendment privilege.
Q. Is that the [police] report you contend is full of lies? Page 49, lines 8-10 Sustained
A. I am invoking my Fifth Amendment privilege.
Q. Well, you said that it was full of lies. I want you to Page 49, lines 11-14 Sustained
tell me what in the report specifically is untrue.
A. I am invoking my Fifth Amendment privilege.
Q. Did [your brother] ever ask you or did you ever tell Page 50 at 19-21 Sustained
him why you were trying to get back inside the Blue
Martini?
A. I am invoking my Fifth Amendment privilege.
Based on the foregoing, I respectfully recommend that the district court find that Luis' assertion of his Fifth Amendment privilege was not improper. In that regard, I also respectfully recommend that the district court deny Defendants' alternative motion to compel responses to these questions.
Defendants also ask this Court to dismiss the action due to Luis' alleged recalcitrance or, in the alternative, stay the action until the underlying criminal action has been resolved. (Doc. 30 at 6-7). Luis agrees that "[t]he imposition of a stay in this matter protects all litigants." (Doc. 31 at 9).
The fact that the criminal case remains pending against Luis is not in dispute. Therefore, I respectfully recommend that the district court stay the case until the underlying criminal case is resolved so that Luis' testimony will no longer carry the risk of self-incrimination. See Wehling, 608 F.2d at 1088-89; In re Grand Jury Proceedings, 995 F.2d 1013, 1018 n. 11 (11th Cir. 1993). I also recommend that the Court require Luis to file a status report every 90 days, to keep the Court informed of the status of his criminal case.
Recommendation
Upon consideration of the foregoing, I respectfully recommend that:
1. Defendants' Motion to Dismiss Luis Fernando Cabeza's Claims Due to His Refusal to Participate in Discovery, or in the Alternative, to Compel the Deposition of Luis Fernando Cabeza, or to Stay the Case (Doc. 30) be DENIED to the extent it seeks dismissal of this case.
2. That the motion be DENIED to the extent it seeks to compel the deposition of Plaintiff Luis Fernando Cabeza at this time.
3. That the motion be GRANTED to the extent it seeks to stay this case pending the resolution of the underlying criminal case.
4. That Plaintiff Luis Fernando Cabeza be required to file a status report every 90 days, detailing the status of his criminal case.
5. That the Court DENY Defendants' request for an award of legal expenses pursuant to Federal Rule of Civil Procedure 37(a)(5).
Specific written objections to this report and recommendation may be filed in accordance with 28 U.S.C. § 636, and M.D. FLA. R. 6.02, within fourteen (14) days after service of this report and recommendation. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.
