CRAIG B. SHAFFER, Magistrate Judge.
This matter comes before the court on the following motions: (1) Plaintiff Heidi Wodiuk's "Motion for Appointment of Counsel in a Criminal Case" (doc. #197), filed on February 9, 2017; (2) Defendant Caitlin Graziano's
Ms. Wodiuk prefaces her motion by stating that she is "a defendant in this case" and "currently not represented by counsel." The motion specifically requests "appointment of counsel in a criminal case" and insists that Ms. Wodiuk cannot "proceed with the defense in this case without the assistance of counsel." As Ms. Wodiuk is the plaintiff in this action, I presume she is referring to her pending criminal action in Pueblo County District Court, People of the State of Colorado v. Heidi Marie Wodiuk, Case No. 2015CR001287 (hereinafter, the "criminal case").
Based upon my review of the publically available docket sheet for the Pueblo County District Court criminal case, it appears that Ms. Wodiuk has court-appointed counsel.
Moreover, I can find no legal support for the proposition that Ms. Wodiuk, as a state criminal defendant, is entitled to appointment of counsel under the federal Criminal Justice Act. That statute specifically directs federal district courts to implement a plan "for furnishing representation for any person financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a) (emphasis added). That qualifying language seemingly excludes Ms. Wodiuk, given that she already has the benefit of court-appointed counsel in her criminal case. I am at a loss to understand how or why this court should use limited federally appropriated funds to provide a court-appointed counsel for a state criminal case in which the presiding judicial officer has taken steps to safeguard Ms. Wodiuk's Sixth Amendment rights. Cf. United States v. Alberte, No. 2:08-cr-0190-GEB, 2009 WL 720876, at *2 (E.D. Cal. Mar. 17, 2009) (holding that Congress did not intend for federal CJA resources to be used to pay a federally-appointed lawyer to provide legal representation in a state court proceeding that was unrelated to a pending federal criminal action).
In essence, Ms. Wodiuk asks this federal court to inject itself into a pending state criminal action. As Senior Judge Lewis T. Babcock explained to Ms. Wodiuk on August 16, 2016, in an Order of Dismissal (doc. #37) filed in Wodiuk v. People of Colorado, Civil Action No. 16-cv-00983-LTB, "[a]bsent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings." See Younger v. Harris, 401 U.S. 37 (1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Senior Judge Babcock also noted in his Order of Dismissal Supreme Court precedent "recogniz[ing] that the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief." See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45). I find that Ms. Wodiuk's motion is neither factually nor legally tenable and will deny the motion on that basis.
Defendant Graziano argues that this civil action should be dismissed pursuant to Fed. R. Civ. P. 41(b). Ms. Graziano insists that dismissal is appropriate because Ms. Wodiuk "has taken no substantive steps toward resolution of this case since" her original attorney withdrew in October 2015, even as she continues to "file irrelevant and meaningless documents with this Court." In sum, Defendant's motion contends that "Plaintiff's lack of relevant action has reached a degree where dismissal is an appropriate action by this Court." Ms. Graziano also asserts that if allowed to "re-depose the Plaintiff and . . . conduct Fed. R. Civ. P. 35 examinations of the Plaintiff," she "may file a Motion for Summary Judgment, based upon questions of qualified immunity which will then be resolved by this Court." To date, Ms. Wodiuk has not filed a response to this motion.
Rule 41(b) states that "[i]f [a] plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." A dismissal under Rule 41(b) "operates as an adjudication on the merits" "unless the dismissal order states otherwise." Given that potential consequence, "[d]ismissing a suit with prejudice for failure to prosecute is a `severe sanction' and should be a measure of last resort." Sun v. CFS2, Inc., No. 16-CV-0236-CVE-TLW, 2017 WL 374473, at *1 (N.D. Okl. Jan. 25, 2017) ("dismissal is warranted when `the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits'") (citing Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) and Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).
It cannot be reasonably disputed that this case has proceeded slowly and remains administratively closed in the wake of orders I entered on June 23, and December 6, 2016. See doc. #157 and doc. #194. However, Defendant's suggestion that Ms. Wodiuk has failed to diligently pursue her civil action must be considered in a fuller factual context. The parties are certainly familiar with the protracted procedural history of this case, but a brief chronological history is warranted.
Ms. Wodiuk commenced this action on October 28, 2014 with the filing of a Complaint pursuant to 42 U.S.C. § 1983. The Complaint alleges generally that "[o]n July 22, 2012, in the parking lot of Kohl's Department Store on Elizabeth Street in Pueblo, Colorado, Officer Graziano attempted to take Wodiuk into custody on a mental health hold."
During a Fed. R. Civ. P. 16 scheduling conference on February 4, 2015, I adopted the pretrial deadlines proposed by the parties, and set a discovery cutoff date of November 1, 2015 and a dispositive motion deadline of December 1, 2015. The court also set a deadline of April 1, 2015 for moving to join parties or amend the pleadings. The court directed the parties to designate affirmative experts pursuant to Fed. R. Civ. 26(a)(2) on or before September 3, 2015, and designate rebuttal experts pursuant to Rule 26(a)(2) on or before October 22, 2015. Those expert disclosures dates were proposed by the parties.
Following the February 4, 2015 scheduling conference, the parties proceeded with discovery. Plaintiff's counsel deposed Defendant Graziano on June 4, 2015. See doc. #62. That deposition lasted for 62 minutes and concluded with plaintiff's counsel's stating that he had "nothing further." Ms. Wodiuk also was deposed on June 4, 2015, in a session that began at 9:00 am and concluded at 2:22 pm.
On September 16, 2015, Mr. Viorst moved to withdraw from this case, citing "irreconcilable differences" with his client. See Motion to Withdraw as Counsel for Plaintiff (doc. #19). Ms. Wodiuk opposed that motion (see doc. #26) on the grounds that her counsel should not be allowed to withdraw because he "has not done his obligations to factually investigate before filing this case and must do his due process obligations before . . . withdrawing." In a lengthy "Notice: Plaintiff, Notice to Notify the U.S. District Court of Attorney Failure to Comply with Federal Court Laws" (doc. #27), filed on October 6, 2015, Plaintiff explained that her counsel had "failed his attorney obligations and rather deceived the plaintiff that [he] did his investigation." Plaintiff further stated that the mental health hold underlying her arrest by Officer Graziano was related to "the grand treason to kidnapping (sic) of Dr. Wodiuk's daughter in [state case] 2007DR1166." Ms. Wodiuk asked that "the courts in this case investigate [her counsel's] misconduct and also report his actions and involvement to federal agents at FBI who can investigate."
During a hearing on October 8, 2015, Ms. Wodiuk agreed with this court that her professional relationship with Mr. Viorst had deteriorated to the point that counsel should be allowed to withdraw. In approving Mr. Viorst's request to withdraw, the court also granted Ms. Wodiuk's request for additional time to find replacement counsel, but warned that she would remain responsible for her case unless or until a new attorney entered an appearance. See Courtroom Minutes/Minutes Order (doc. #29). The court set a further telephone status conference for November 10, 2015 and stayed all discovery pending that status conference.
Mr. Viorst's motion and subsequent withdrawal as Ms. Wodiuk's counsel did not bring discovery to a complete halt.
Even as this action was proceeding, albeit in fits and starts, Ms. Wodiuk's legal situation became more complicated. Three days after Ms. Wodiuk was deposed on June 4, 2015, she was named as the defendant in People of the State of Colorado v. Heidi Marie Wodiuk, Pueblo County District Court, Case No. 2015CR001287. The felony complaint in that case charged Ms. Wodiuk with ten violations of Colo. Rev. Stat. § 18-5-902(1)(c) [identity theft], nine violations of Colo. Rev. Stat. § 18-5-102(1)(c) [forgery], and two violations of Colo. Rev. Stat. § 18-3-602(1)(c) [stalking]. The identity theft charges generally allege that Ms. Wodiuk "unlawfully, feloniously, and with the intent to defraud, falsely made, completed, altered, or uttered a written instrument or financial device containing personal identifying information or financial identifying information of Michael Franti." The forgery counts assert that Ms. Wodiuk
various quitclaim deeds. Finally, the stalking claims allege that Ms. Wodiuk unlawfully, feloniously and knowingly made a credible threat to Michael Franti and "repeatedly followed, approached, contacted, placed under surveillance, or made any form of communication with, Michael Franti, in a manner that . . . caused Michael Franti serious emotional distress." See Ms. Wodiuk's "Petition for Writ of Certiorari for Trial Court Case 15CR1287 in Pueblo Colorado," (doc. #1, at pages 22-35 of 35), in Dr. Heidi Wodiuk v. People of Colorado, Civil Action No. 17-cv-00475-LTB.
Neither side moved to stay this civil action after the criminal case commenced in Pueblo County District Court, but Ms. Graziano's counsel acknowledged during a hearing on October 8, 2015 that Ms. Wodiuk's alleged relationship with Mr. Franti is "kind of background, if you will, to this case." Perhaps that explains why, on October 14, 2015, Ms. Wodiuk filed a pro se "Motion for Plaintiff Amendment 5 Rights to be Honored and Protected in This Case for Plaintiff Due Process Rights to a Fair Trial in Case 15CR1287" (doc. #32). In this submission, Ms. Wodiuk asserted that she was facing a "groundless, meretricious, criminal case 15CR1287 in Pueblo Colorado" and asked this court to "honor and protect [her] right to plee (sic) the fifth amendment when being questioned anything about case 15CR1287."
As noted previously, Mr. Glantz entered his appearance on behalf of Ms. Wodiuk on April 19, 2016. His ability to effectively represent his client was, unfortunately, complicated from the outset of the engagement. On March 11, 2016, the Pueblo County District Court entered in the criminal case an "Order Finding Defendant Incompetent to Proceed and Committing Defendant for In-Patient Restoration to Competency." See Exhibit A (doc. #152-1) attached to Plaintiff's "Motion for Appointment of Guardian Ad Litem." In its Order, the Pueblo County District Court found "pursuant to Section 16-8.5-111, C.R.S., that [Ms. Wodiuk] is `incompetent to proceed"
In view of the foregoing competency orders, Mr. Glanz filed a "Status Report" (doc. # 153) on June 17, 2016, as well as a contemporaneous "Motion for Appointment of Guardian Ad Litem" (doc. #152). In moving for the appointment of a guardian ad litem, Mr. Glanz advised that
See Motion for Appointment of Guardian Ad Litem, at 2-3.
This court held a telephone status conference with counsel for the parties on June 23, 2016. At that conference, Mr. Glanz informed the court that Ms. Wodiuk was still in the custody of the Colorado Mental Health Institute at Pueblo ("CMHIP") which substantially impaired his ability to confer with his client. Mr. Glanz also informed the court that a guardian ad litem had been appointed for Ms. Wodiuk by the Pueblo County District Court in a then-pending civil lawsuit. After some discussion with the court, Mr. Glanz agreed that there was little to be gained by this court appointing a separate guardian ad litem, and indicated that he would consider asking the Pueblo County District Court to expand the authority of the state-appointed guardian ad litem. Based on that colloquy, this court denied without prejudice Plaintiff's "Motion to Appoint Guardian Ad Litem."
Again, Mr. Glanz was forced to withdraw from this case on September 15, 2016 for medical reasons.
The Pueblo County District Court's docket in the criminal case indicates that on August 4, 2016, the court lifted the mental health stay as to Ms. Wodiuk. One week later, the Pueblo County District Court in Pueblo Conservancy Dist. v. Pueblo West Metropolitan District, Case No. 1967CV17664, entered an Order Terminating Appointment of Guardian ad Litem. In that Order, the court noted:
See Exhibit A (doc. #162-1) attached to Plaintiff's Status Report.
At my direction, Defendant Graziano filed her "Response to Court's Request for Discovery Status" (doc. #192) on December 1, 2016. In that filing, defense counsel advised that
Ms. Wodiuk filed her own "Status Report" (doc. #193) on December 2, 2016. That report stated:
In light of the foregoing submissions, this court held a status conference on December 6, 2016. At the close of that status conference, I indicated that
See Courtroom Minutes/Minute Order (doc. #194).
On February 2, 2017, the Pueblo County District Court entered a new Order finding that Ms. Wodiuk was "incompetent to proceed" in the criminal case, and directing Ms. Wodiuk to arrange "any needed services to restore [her] to competency."
On April 28, 2017, the Pueblo County District Court entered another "Order Finding Defendant Incompetent to Proceed and Allowing Continuing On-Bond Status." This Order directed Ms. Wodiuk to arrange "any needed services to restore the Defendant to competency," and encouraged Ms. Wodiuk "to seek on her own whatever restoration services she believes will be beneficial to her." With no trial date looming, the Pueblo County District Court has set a review of Ms. Wodiuk's competency for July 28, 2017.
It is well-established that a court has the inherent authority to manage its civil docket with an eye toward the orderly and expeditious disposition of cases. See, e.g., Bettis v. Toys "R" US-Delaware, Inc., 273 F. App'x 814, 818 (11th Cir. 2008) ("The district court possesses the inherent power to police its docket.") (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)). Cf. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (recognizing "the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants," but also warning that this "calls for the exercise of judgment, which must weigh competing interests and maintain an even balance"). Dismissal with prejudice under Rule 41(b) is, however, an "extreme sanction" that should be employed only in "rare circumstances" and in "cases of willful misconduct."
Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). When the court considers Defendant's requested relief in light of the foregoing factors, I conclude that dismissal with prejudice under Rule 41(b) is not appropriate.
As to the first factor, "the degree of actual prejudice to the defendant," there is no question that Defendant Graziano has been subjected to prolonged delay through no fault of her own. Nearly a year has passed since the court first administratively closed this case, and still no resolution of Ms. Wodiuk's criminal case is in sight. As the Ninth Circuit acknowledged in Davis v. Walker, 745 F.3d 1303 (9th Cir. 2014), a lengthy or indefinite stay of a civil lawsuit has potentially adverse consequences.
Id. at 1308-09 (quoting Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 2007)). This court cannot discount the frequently cited adage that "justice delayed is justice denied." See Sanchez v. Hartley, No. 13-cv-01945-WJM-CBS, 2016 WL 7176718, at *7 (D. Colo. Apr. 26, 2016). Cf. Zukowski v. Howard, Needles, Tammen, and Bergendoff, 115 F.R.D. 53, 58 (D. Colo. 1987) (rejecting any notion "that time and justice are unrelated").
Yet, I believe that Ms. Wodiuk has an equally strong desire for a "just, speedy, and inexpensive" resolution of this civil action. See Fed. R. Civ. P. 1 (requiring the court and the parties to construe, administer and employ the Federal Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination of every action and proceeding"). In the end, the court must strike an appropriate balance between just and speedy and inexpensive. Cf. Hunter v. Hamilton Cty., No. 1:15-cv-540, 2015 WL 12999662, at *4 (S.D. Ohio Dec. 23, 2015) ("While defendants argue that the risk to their reputations from remaining defendants in plaintiff's lawsuit prejudices them, the [court] finds that the possibility of any such reputational harm is minimal compared to the gravity of plaintiff's upcoming criminal trial. * * * The [court] concludes that while it is in the interests of the Court and the public to have claims resolved expeditiously, this interest does not outweigh the factors . . . that weigh in favor of a stay.").
I do not find that Officer Graziano has suffered a "degree of actual prejudice" that would justify imposition of an extreme sanction. While memories are likely to fade with the passage of time, Defense counsel has not demonstrated an inability to discover relevant facts surrounding the events at the Kohl's Department Store parking lot. Counsel questioned Ms. Wodiuk at length during her deposition in 2015 and obtained Plaintiff's detailed account of what occurred during her interaction with Officer Graziano. Indeed, save for the possibility of re-opening Ms. Wodiuk's deposition to address a limited number of topics (which may or may not be relevant to Plaintiff's alleged damages), defense counsel appears to have completed discovery directed to issues of liability.
Finally, I am aware that Defendant Graziano raised the defense of qualified immunity in her Answer (doc. #10) to Plaintiff's Complaint. The doctrine of qualified immunity provides "an immunity from suit rather than a mere defense to liability." "For this reason . . . qualified immunity questions should be resolved at the earliest possible stage of a litigation." Aurelio v. South, No. 15-cv-1540-WJM-CBS, 2016 WL 8542534, at *2 (D. Colo. May 16, 2016) (quoting Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987)). Unfortunately, protracted delay in this case attributable to Ms. Wodiuk's criminal case does have the unintended effect of compromising the objectives underlying the qualified immunity doctrine. That consequence does not, however, justify the extreme sanction of dismissal with prejudice, particularly if defense counsel is afforded an opportunity to raise that affirmative defense in a motion for summary judgment. On balance, while Defendant's right to an expeditious disposition of this case has been adversely impacted through no fault of her own, Ms. Graziano's ability to litigate the merits of her case has not been substantially prejudiced.
Similarly, I cannot find that delay is the result of wilful misconduct on the part of Ms. Wodiuk. The withdrawal of Plaintiff's original counsel was a complicating factor, but without knowing all of the circumstances that prompted counsel's motion, this court is not prepared to ascribe any wrongful motive to Ms. Wodiuk. Certainly, Plaintiff cannot be faulted for her second counsel's bicycle accident and resulting motion to withdraw. Although the Pueblo County District Court's competency findings have delayed the criminal case (and this case indirectly), Ms. Wodiuk has challenged the findings of the CHMIP evaluators.
In exercising its discretion under Rule 41(b), the court should also consider whether, and to what extent, the lack of diligent prosecution has adversely impacted the judicial process. Ms. Wodiuk stands on much weaker ground as to this factor. On June 23, 2016, I administratively closed this case in light of actions taken in the criminal case regarding Ms. Wodiuk's competence to proceed and Mr. Glanz's limited access to his client. See Courtroom Minutes/Minute Order (doc. #156). On December 6, 2016, this court continued, at Ms. Wodiuk's request, the administrative closure of this case pending the disposition of her criminal case, subject to the caveat that the parties could not file any motions, except motions to re-open the case. See Courtroom Minutes/Minute Order (doc. # 194). However, even as this case remains administratively closed (both to protect Ms. Wodiuk's rights vis-a-vis her criminal case and to facilitate the court's management of its docket), Ms. Wodiuk has inundated the United States District Court with frivolous filings that directly implicate her criminal case and status as a criminal defendant.
On April 25, 2016, Ms. Wodiuk filed in the United States District Court an action captioned, Wodiuk v. People of Colorado, Civil Action No. 16-cv-00983-LTB. In that case, Ms. Wodiuk sought a writ of habeas corpus challenging the legality of her confinement in the criminal case. Ms. Wodiuk argued that her criminal case and related pretrial custody was malicious and predicated on certain procedural and investigative irregularities that provided "unconstitution (sic) grounds for just cause in good faith for the U.S. District Courts to intervene and protect Dr. Wodiuk[`s] rights." See Civ. 16-983, doc. 1. On May 31, 2016, in the same case, Ms. Wodiuk filed another "Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" (doc. #18) in which she sought the dismissal of her criminal case. Ms. Wodiuk asked that the federal court "file with FBI" criminal charges against Judge David Crockenberg, Assistant District Attorney Kalalee Beauvais, Assistant State Defender Samantha Bloodworth, and various members of the Pueblo County Sheriff's Department for conspiring against her and charging her with criminal violations. Ms. Wodiuk further directed the United States District Court to notify the Secret Service immediately of an alleged threat against President Obama.
On August 16, 2016, Senior Judge Babcock entered an Order of Dismissal (doc. #37) in Wodiuk v. People of Colorado, Civil Action No. 16-cv-00983-LTB. Senior Judge Babcock noted that in her Application, Ms. Wodiuk discussed at length "the alleged basis for the state criminal proceeding that has been filed against her and the related psychological evaluations that have been conducted to determine her competency." The district court explained that "[a]bsent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings." Id. at page 4 of 9. Because Ms. Wodiuk had "failed to demonstrate extraordinary circumstances," the district court "abstain[ed] from exercising jurisdiction over the Application." Senior Judge Babcock concluded that "the instant case will be dismissed because [Ms. Wodiuk] is subject to a criminal proceeding and she fails to allege facts that indicate she will suffer great and immediate irreparable injury if the Court does not intervene in the ongoing state court criminal proceeding." Id. at pages 7-8 of 9.
Since Senior Judge Babcock dismissed Civil Action No. 16-cv-00983-LTB, Ms. Wodiuk has filed no less than 17 post-judgment submissions in that case. For example, on August 24, 2016, Ms. Wodiuk filed a paper styled "Misuse of Process: Sedition Acts Judicial Treats (sic) to Dr. Wodiuk" (doc. #51). In this submission, Ms. Wodiuk accused Senior Judge Babcock of "aiding and abetting domestic terrorism" and committing "a serious crime not only against Dr. Wodiuk but Barack Obama and the USA," by failing to "release her from malicious detainment and malicious prosecutions." On the same day, Ms. Wodiuk filed a "Response to: Order of Dismissal August 16, 2016 filed by Judge Babcock" (doc. #53). Once again, Ms. Wodiuk accused the district judge of failing to enforce her federal rights and discharging his "obligatory mandated duty to intervene" when a state court acts "to prosecute charges outside their jurisdiction." Ms. Wodiuk asked whether Senior Judge Babcock was "on drugs cause this case is black and white obvious." Ms. Wodiuk concluded by asserting that judges in the United States District Court "are now accessors to Grand Treason." On August 30, 2016, Ms. Wodiuk filed a "Habeas Corpus Right to Release for Criminal Pro Se Litigants — Entitled by Law and Constitution Rights" (doc. #56). Ms. Wodiuk insisted that she was entitled to immediate release from custody in her criminal case and that "depriving this right by a federal court is treason of sedition a serious crime against America of infringement of fundamental constitutional rights." Ms. Wodiuk renewed the aforementioned arguments in her "Writ of Habeas Corpus: Dismiss on Canon 4 Violation, Sedition Act" (doc. #58). Once again, Ms. Wodiuk accused Senior Judge Babcock of acting "in conspired organized domestic terrorism acts against the USA, President Barack Obama, and refused to report its claims so to protect the President, as well as failed to investigate, intervene and indict Dr. Wodiuk to U.S. Supreme Court for it." On November 3, 2016, Ms. Wodiuk filed an "Invoice of Pro Se Litigation Fees — The US Colorado Federal Courts Must Pay Dr. Wodiuk Litigation Fees in this Case" (doc. #66). In this filing, Ms. Wodiuk argued that by aiding "domestic terrorism denying to intervene in malicious prosecutions, wrongful detainments, court ordered murder attempts, inhabitable detainment facilities, deprivation of inalienable rights and human rights," this district court is liable and accountable for Ms. Wodiuk's litigation fees and costs, and damages, "due to the courts willful, conscious, malicious aiding and abetting" her state criminal case.
Most recently, on May 18, 2016, Ms. Wodiuk filed in Civil Action No. 16-cv-00983-LTB, a "Motion for: Contempt of Court Ex Parte Crimes to be Motions in Reporting to FBI, the US Judicial Discipline Board and the United States President Donald Trump Today for the Prohibited Crimes Done in Ex Parte" (doc. #75). In this motion, Ms. Wodiuk accuses Senior Judge Babcock and Magistrate Judge Gordon Gallagher of engaging in ex parte crimes
Id.
On February 22, 2017, Ms. Wodiuk filed in the United States District Court a new action styled "Petition for Writ of Certiorari for Trial Court Case 15CR1287 in Pueblo Colorado" (doc. #1). See Dr. Heidi Wodiuk v. People of Colorado, Civil Action No. 17-cv-00223-LTB. In this case, Ms. Wodiuk was requesting "federal court intervention into the unconstitutional trial court case 15CR1278 heard outside of the state trial courts subject matter jurisdiction." More specifically, Ms. Wodiuk requested "federal intervention to dismiss and over throw all unlawful acts, proceedings, hearings and orders made in sedition in state trial court 15CR1287, 2007DR1166, 1967CV17664 . . . as they are acts of treason and by treaties deemed levy for war acts." On March 24, 2017, Senior Judge Babcock dismissed this action for failure to cure noted deficiencies in her initial papers. See Civ. 17-223, doc. #6. Ms. Wodiuk again was reminded that "certiorari review of a state court decision more properly is filed in the United States Supreme Court," and warned once again that the district court "may, in its discretion, place reasonable restrictions on any litigant who files non-meritorious actions for obviously malicious purposes and who generally abuses judicial process." Id. In response to Senior Judge Babcock's Order of Dismissal, Ms. Wodiuk filed on April 4, 2017 a "Post Judgment Relief to Bias, Prejudice, Discrimination, Treason Judgment" (doc. # 8) in which she accused Senior Judge Babcock of "ruling and judging in this case in a bias, prejudice, discrimination crime against Dr. Wodiuk in treason to GRAND TREASON TO KIDNAPPING of Dr. Wodiuk's child . . . and kidnapping of Dr. Heidi Wodiuk as noted in the writ of certiorari filings."
In short, while Ms. Wodiuk wishes to stay this civil lawsuit indefinitely in deference to her criminal case, she has submitted public filings that discuss the facts and circumstances of that case as justification for the federal district court's intervention in that proceeding. Ms. Wodiuk should not be permitted to use her criminal case as both a sword and a shield to advance her interests; particularly when that strategy plainly subjects this district court to frivolous filings.
Finally, the court should consider the efficacy of some remedy, short of dismissal with prejudice, that will properly balance the competing interests of Ms. Wodiuk and Ms. Graziano. This factor requires the court to address the interplay between Ms. Wodiuk's civil and criminal cases.
In the past, this court has expressed its desire to protect Ms. Wodiuk's Fifth Amendment rights given her pending criminal case. However, Ms. Wodiuk's Fifth Amendment rights are not absolute and do not automatically preclude this case from proceeding. Under the Fifth Amendment, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself," and this guaranteed right to remain silent continues "unless [that person] chooses to speak in the unfettered exercise of his own will." Schmerber v. California, 384 U.S. 757, 760-61 (1966). As the Supreme Court noted in Colorado v. Spring, 479 U.S. 564, 573 (1987), a person can waive their Fifth Amendment rights if they do so voluntarily, knowingly, and intelligently. "Waiver is voluntary if it is the `product of a free and deliberate choice,' rather than intimidation, coercion, or deception, and it is knowing and intelligent if it is done with `full awareness . . . of the right being abandoned and the consequences of the decision to abandon it.'" United States v. Smith, 821 F.3d 1293, 1304 (11th Cir. 2016) (quoting Spring, 479 U.S. at 573). "[I]f the witness himself elects to waive his privilege as he may doubtless do, since the privilege is for his protection and not for that other parties, . . . he is not permitted to stop, but must go on and make a full disclosure." Rogers v. United States, 340 U.S. 367, 373 (1951) ("[d]isclosure of a fact waives the privilege as to details"). See also Klein v. Harris, 667 F.2d 274, 278 (2d Cir. 1981) ("There is no doubt that a waiver of the fifth amendment's privilege against self-incrimination may, in an appropriate case, be inferred from a witness' prior statements with respect to the subject matter of the case, without any inquiry into whether the witness, when he made the statements, actually knew of the existence of the privilege and consciously chose to waive it.").
During her deposition on June 4, 2015, Ms. Wodiuk and her counsel had no reluctance to protect Plaintiff's Fifth Amendment rights and privacy interests. So, for example, when defense counsel asked to whom Ms. Wodiuk was "currently engaged," she responded: "I'm not supposed to speak of anything of my personal life right now because its being investigated in another crime, in another case." Mr. Viorst also instructed Ms. Wodiuk not to answer when she was asked who gave her the engagement ring she was wearing, and earlier in the deposition when she was asked who might be the father of Ms. Wodiuk's minor child. In response to the latter question, Ms. Wodiuk responded that she was "not supposed to discuss anything at this time right now as there is an investigation in the case going." In contrast, Ms. Wodiuk discussed at length the events in the Kohl's Department Store parking lot and her interactions with Defendant Graziano, without any objection from her counsel or invocation of the Fifth Amendment.
"The Constitution [ ] does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings," SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980) (citing Baxter v. Palmigiano, 425 U.S. 308, 317-19 (1976)), and "a civil plaintiff has no absolute right to both his silence and his lawsuit." Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1088 (5th Cir. 1979). "While it may be true that an individual should suffer no penalty for the assertion of a constitutional right, neither should third parties sued by that individual who have no apparent interest in the criminal prosecution, be placed at a disadvantage thereby." Id. at 1088 (quoting Jones v. B.C. Christopher & Co., 466 F.Supp. 213, 227 (D. Kan. 1979)). Accordingly, "courts have recognized that a stay may be appropriate to avoid requiring a plaintiff `to choose between his silence and his lawsuit,' so long as it does not impose undue hardship on the defendants." DeAtley v. Allard, No. 14-cv-00100-RM-KMT, 2014 WL 1258170, at *2 (D. Colo. Mar. 27, 2014).
Id. Cf. SEC v. McGinnis, 161 F.Supp.3d 318, 321-22 (D. Vt. 2016) (noting that "a stay of a civil case to permit conclusion of a related criminal prosecution has been characterized as an extraordinary remedy" and should reflect "the district court's studied judgment as to whether the civil action should be stayed based on the particular facts before it and the extent to which such a stay would work a hardship, inequity, or injustice to a party, the public or the court").
Here, the court has not been provided with any facts that would demonstrate, or even suggest, that the central facts and issues in Ms. Wodiuk's civil and criminal cases are identical or involve overlapping proofs. As noted, Ms. Wodiuk's alleged criminal offenses occurred in 2015 and involved activities directed toward or affecting Mr. Franti. Ms. Wodiuk's civil claims assert constitutional violations of the Fourth Amendment and involve only Ms. Graziano. The elements that the State of Colorado must prove beyond a reasonable doubt to establish Ms. Wodiuk's guilt in the criminal case are entirely distinct from the elements of the Fourth Amendment violations that Ms. Wodiuk must prove by a preponderance of the evidence to prevail in this civil case. While there may be some factual overlap between the damages that Ms. Wodiuk claims were caused by Defendant Graziano's conduct in the Kohls Department Store parking lot and certain events in 2015, that does not necessarily require a complete stay of this case; particularly given that most of the fact-based discovery relevant to this case already has occurred.
But even if Defendant Graziano might have a viable motion for summary judgment that can be pursued without compromising Plaintiff's Fifth Amendment rights, the court cannot dispose of any of Ms. Wodiuk's claims on the merits if she is an incompetent person entitled to the protections of Rule 17(c)(2) of the Federal Rules of Civil Procedure. Cf. Mil'chamot v. N.Y. City Hous. Auth., No. 15 Civ. 108 (PAE), 2016 WL 659108, at *3 (S.D.N.Y. Feb. 16, 2016). See also Jurgens v. Dudendorf, No. 2:14-cv-02780 KJM DAD, 2015 WL 4910536, at *5 (E.D. Cal. Aug. 17, 2015) (recognizing that the court is under a legal obligation to consider whether a litigant is adequately protected) (citing United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986)).
Rule 17(a) states that "[t]he court must appoint a guardian ad litem — or issue another appropriate order — to protect a minor or incompetent person who is unrepresented in an action."
The Tenth Circuit has held that the phrase "incompetent person" in Rule 17(c)(2) refers "to a person without the capacity to litigate under the law of his state of domicile." Graham v. Teller Cty., Colo., 632 F. App'x 461, 465 (10th Cir. 2015). In People in the Interest of M.M., 726 P.2d 1108, 1117 (Colo. 1986), the Colorado Supreme Court acknowledged that there are a wide variety of mental disabilities, not all of which render a person legally incompetent to sue or be sued. However, the Colorado Supreme Court recognized that "it is proper for a court to appoint a guardian ad litem for a litigant when the court is reasonably convinced that the party is not mentally competent to effectively participate in the proceeding." Id. at 1118. Turning specifically to Colorado Rule of Civil Procedure 17(c), the Colorado Supreme Court observed:
Id. at 1119.
Rule 17(c)(2) may be implicated in circumstances that do not fall easily along a bright-line standard. A court is not required to make a sua sponte determination of mental competence simply because a pro se litigant is demonstrating bizarre behavior that might suggest mental incapacity. See, e.g., Jackson v. Pa. Dep't of Corr., No. 14-1604, 2015 WL 1201359, at *1 (W.D. Pa. Mar. 16, 2015) (finding that the plaintiff was competent and that a Rule 17(c)(2) hearing was not required because the plaintiff's past filings demonstrated that he was "sufficiently articulate and capable of appropriate legal argument," and there was no evidence that the plaintiff had been adjudicated incompetent by any court).
Hudnall v. Sellner, 800 F.2d 377, 385 (4th Cir. 1986) (recognizing the real possibility that "a presumably competent party might be thought to be acting oddly, or foolishly, or self-destructively in prosecuting or defending a civil lawsuit" and asking "whether and at what point any duty devolves upon a court to initiate specific inquiry into whether these surface manifestations suggest that the party might be `incompetent' in fact"). See also Maynard v. Casebolt, 221 F.3d 1352 (Table), 2000 WL 1005265 (10th Cir. 2000) (unpublished opinion; citing Hudnall with favor). The relevant inquiry under Rule 17(c)(2) is "whether the litigant is `mentally competent to understand the nature and effect of the litigation she has instituted." Scannavino v. Fla. Dep't of Corr., 242 F.R.D. 662, 664 (M.D. Fla. 2007) (recognizing that "[b]ecause `[a] person may be competent to make some decisions but not others,' the test of a party's competency `varies from one context to another'").
The Second Circuit Court of Appeals has suggested that while a court is not required "to conduct a sua sponte inquiry into a litigant's competency when he or she demonstratives signs of incapacity,"
Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003). However, the Second Circuit also recognized that nothing in Rule 17(c)(2) "prevents a district court from exercising its discretion to consider sua sponte the appropriateness of appointing a guardian ad litem for a litigant whose behavior raises a significant question regarding his or her mental competency." Id. at 203 (emphasis in original). Cf. Gibson v. Hagerty Ins. Agency, No. 1:16-cv-00677-DAD-BAM, 2017 WL 1022792, at *2-3 (E.D. Cal. Mar. 16, 2017) (suggesting that an exercise of discretion under Rule 17(c)(2) should be guided by evidence that speaks "to the court's concern as to whether the person in question is able to meaningfully take part in the proceedings").
The circumstances presented in this case bear a striking resemblance to those in Sturdza v. United Arab Emirates, 644 F.Supp.2d 50 (D.D.C. 2009), aff'd, No. 06-7061, 2009 WL 5125239 (D.C. Cir. Dec. 17, 2009) (unpublished, per curiam). In that case, the court appointed a guardian ad litem for the plaintiff based on the "entire record of this case" including the pro se plaintiff's own presentations to the court, and after determining that she was not "`capable of making responsible decisions concerning the pending litigation' because she is irrational regarding this case." The district judge acknowledged that he would have preferred to base his decision on a mental health professional's opinion regarding the plaintiff's `competency, but that was not possible as the plaintiff refused to permit an evaluation to be performed.
Id. at 75-77. Ms. Wodiuk seems to labor under the same belief.
In exercising my discretion under Rule 17(c)(2), I remain mindful of Ms Wodiuk's due process rights. Unfortunately, there is a dearth of Tenth Circuit precedent on that issue. "A litigant has a liberty interest in avoiding the stigma of being found incompetent and in retaining personal control over litigation." Laney v. Schneider Nat'l Carriers, Inc., No. 09-CV-389-TCK-FHM, 2011 WL 13096625, at *3 (N.D. Okla. Mar. 29, 2011), report and rec. adopted, 2011 WL 13096626 (N.D. Okla. Apr. 27, 2011). However, a formal, evidentiary hearing is not required in every case before a trial court may appoint a guardian ad litem because such a requirement "would consume a significant amount of judicial resources, cause delay, and accomplish little." Cf. Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 651, 654 (2d Cir. 1999) (noting that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands") (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). See also Neilson, 199 F.3d at 652 (holding that the trial court's failure to have an evidentiary hearing before appointing a guardian ad litem did not violate the plaintiff's due process rights "because of the availability of post-appointment review and because of [plaintiff's] questionable competence at the time the decision was made").
Addressing the due process constraints that attend a district court's exercise of discretion under Rule 17(c)(2), one appellate court has held that "[w]hen the party for whom the guardian is sought claims to be competent, at least `some hearing' is required." Sturdza v. United Arab Emirates, 562 F.3d 1186, 1188 (D.C. Cir. 2009). "[A]lthough this need not always take the form of a `full evidentiary hearing,' at a minimum it entails `notice and an opportunity to be heard.'" Id. When the district court originally appointed a guardian ad litem without a hearing, the D.C. Circuit held that the trial court should have first informed Ms. Sturdza that "in determining whether to appoint a guardian for her, `it would . . . consider any failure on her part to comply or to submit to psychiatric evaluation" and "made clear to Ms. Sturdza that she could seek to dismiss her claim without prejudice if she wished to avoid either a psychiatric evaluation or the loss of control over her litigation." Sturdza, 562 F.3d at 1189. Compare Bacon v. Mandell, civ. No. 10-5506(JAP), 2012 WL 4105088, at *18 (D.N.J. Sept. 14, 2012) (requiring the plaintiff "to show cause as to why he shall remain the master of his claims" and warning that a guardian ad litem would be appointed if the plaintiff failed to demonstrate the requisite competence to proceed).
In light of the foregoing legal authorities, and after thoroughly reviewing the files in this action and Ms. Wodiuk's submissions in other cases in the United States District Court, I believe that appointment of a guardian ad litem for Ms. Wodiuk is appropriate and necessary in this case to protect her interests. That conclusion is based on the Pueblo County District Court's various orders, one as recent as April 28, 2017, stating that Ms. Wodiuk was and is currently incompetent to proceed in her criminal case. The latter orders necessarily required a finding that Ms. Wodiuk was subject to a mental disability that prevents her from having "sufficient present ability to consult [with her defense counsel] with a reasonable degree of rational understanding in order to assist" her defense or, alternatively, that she "does not have a rational and factual understanding" of her criminal proceeding. My belief that Ms. Wodiuk requires a guardian ad litem is further based on a comparable decision entered by the Pueblo County District Court in Pueblo Conservancy Dist. v. Pueblo West Metropolitan District, Case No. 1967CV17664, as well as my own observations of Ms. Wodiuk during several hearings in this case.
I am aware that Ms. Wodiuk disputes the competency evaluations performed by staff members at the Colorado Mental Health Institute of Pueblo. See doc. #200. Ms. Wodiuk asserts that those staff members "willfully and ocnciously (sic) acted in malpractice acts," "conducted unconstitutional malicous (sic) evaluations on [her] in case 15CR1287," and "acted in conscious intent to harm [her] life, liberty and psychi for the state in extortion, entrapment and coercion acts." In another recent filing, Ms. Wodiuk contends that Dr. Nicole Glover "in perjury, fabricated facts to kangarooize the trial courts and taint Dr. Wodiuk's character and ability to stand trial in crimin rae acts done in intentional malicious malpractice." See doc. #199. Given Ms. Wodiuk's pattern of making sweeping accusations against anyone and everyone she perceives as acting against her interests,
Accordingly, I will stay entry of a Rule 17(c)(2) Order appointing a guardian ad litem for a period of forty-five (45) days. On or before June 19, 2017, Ms. Wodiuk must produce for this court's in camera review
As noted earlier, Ms. Wodiuk filed the foregoing motion on May 18, 2017, challenging the judicial officers assigned in Civil Action Nos. "14-cv-02931-CBS, 17cv943, 16cv983, 16cv02673, and 17cv00223." Without citing any factual support, Ms. Wodiuk contends that "the prohibited acts done by the judicial officers and the counsel attorney's at law in the mentioned cases above all partaking in ex parte communications to organize and conspire harm to Dr. Wodiuk and her child and all the cases witnesses in depriving justice in the ex parte obstruction of justice crimes conspired." This motion is denied as wholly frivolous.
Ms. Wodiuk does not identify the particular "ex parte communications" that she attributes to this specific judicial officer. Moreover, the legal authority that she cites in her motion appears to come from federal regulations governing proceedings before the Surface Transportation Board. See Ms. Wodiuk's "Motion for: Contempt of Court," at page 3 (referencing "47 FR 499548, Nov. 1, 2982 as amended at 58 FR 42047, Aug. 6, 1993; 74 FR 52905, Oct. 15, 2009; 81 FR 8853, Feb. 23, 2016"). As Senior Judge Babcock advised Ms. Wodiuk in other cases, even a pro se litigant does not have the right to abuse the judicial process by filing motions or other submissions that are wholly without factual or legal merit. Ms. Wodiuk's "Motion for Contempt" falls squarely within that category.
For the reasons set forth above, the court hereby DENIES Plaintiff Heidi Wodiuk's "Motion for Appointment of Counsel in a Criminal Case" (doc. #197) and her "Motion for: Contempt of Court Ex Parte Crimes to be Motioned in Reporting to FBI, the US Judicial Discipline Board and the United States President Donald Trump Today for the Prohibited Crimes Done in Ex Parte" (doc. #208). The court also DENIES Defendant Caitlin Graziano's "Motion to Dismiss for Failure to Prosecute" (doc. #201), finding that dismissal with prejudice is not warranted by the facts in this case. However, the court remains mindful of my obligation to protect the legitimate interests of both parties and prompt the goals of Rule 1. Accordingly, I am requiring that on or before June 19, 2017, Ms. Wodiuk must produce for this court's in camera review copies of all competency evaluations prepared for or at the direction of the Pueblo County District Court in connection with her criminal case. If she wishes, Ms. Wodiuk may also produce in camera, on or before July 9, 2017, a competency evaluation prepared by a qualified medical or mental health professional of her choice. In light of those evaluations, the court will determine whether a guardian ad litem must be appointed pursuant to Rule 17(c)(2) or whether an evidentiary hearing should be held to further address Ms. Wodiuk's competency to proceed in this case. Once the court determines whether Ms. Wodiuk requires a guardian ad litem, the court will consider whether, and to what extent, this action should remain administratively closed.
Within fourteen days after service of a copy of this Order, a party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. See 28 U.S.C. § 636(b)(1). The district judge may consider timely objections and modify or set aside any part of the magistrate judge's Order that is clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). A general objection that does not put the district judge on notice of the basis for the objection may not preserve the objection for later review and failure to make timely objections may bar a party from assigning as error a defect in the Order not timely objected to.
