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December 2, 1997

JOE JACKSON and RUBY JACKSON, Plaintiffs, against THOMAS JOHNSON, Corrections Officer and GLEN S. GOORD, Commissioner of Correctional Services, Defendants.

The opinion of the court was delivered by: PECK


 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Lewis A. Kaplan, United States District Judge:

 Presently before the Court is defendants' motion to stay plaintiffs' § 1983 action -- which alleges that plaintiff Joe Jackson was subjected to retaliation and prison disciplinary punishment in violation of due process when a "weapon" was found in his living area -- pending resolution of a state criminal proceeding against plaintiff Joe Jackson for possession of that weapon. For the reasons set forth below, the Court recommends that defendants' motion be denied.


 Plaintiffs' complaint alleges violations of 42 U.S.C. § 1983 while plaintiff Joe Jackson was incarcerated at Fishkill Correctional Facility. Jackson asked to be placed in protective custody to avoid problems with other prisoners. Jackson, however, refused to falsely implicate another inmate who defendant Correction Officer Johnson allegedly wanted Jackson to implicate. The complaint alleges that in retaliation, on January 9, 1996, C.O. Johnson "found" a damaged state-issued razor in Jackson's property cube, which Jackson alleges was planted either by Johnson or inmates. The complaint also alleges that Jackson was deprived of due process in connection with the resulting Tier III disciplinary hearing, which resulted in 99 days in keeplock and loss of privileges. (Cplt. § IV at attached pp. 1-2.) *fn1"

 In addition to the internal prison disciplinary proceedings, on February 20, 1996, the Dutchess County District Attorney filed a felony complaint charging Joe Jackson with promoting prison contraband in the first degree in violation of Penal Law § 205.25(2). (10/21/97 Letter-motion by Asst. Attorney General Richard J. Cardinale, at 1-2 & Ex. B.) The felony charge has been reduced to a misdemeanor, and Jackson's next court appearance on that charge is scheduled for January 6, 1998. (Id. at 2 & Ex. C.)

 The Assistant Attorney General defending this action only became aware of the criminal proceeding when he deposed Mr. Jackson on October 10, 1997. (Id. at 1.) By letter-motion dated October 21, 1997, defendants moved to stay this action until resolution of the pending criminal proceeding. Because the request was made just two weeks before the November 3, 1997 discovery cutoff date, the Court ordered the parties to complete discovery while the motion was pending. (10/22/97 Order.)

 Plaintiff Joe Jackson opposes the requested stay. (See 10/23/97 Joe Jackson letter and 10/29/97 Jackson "Opposition to Stay.") He notes that the criminal case is still pending almost two years after the January 1996 incident, and that "delayed justice is denied justice." (Id.) *fn2"


 It is well settled that a federal court has the discretion to stay a civil case pending resolution of a related state court criminal action, if the interests of justice so require. See, e.g., Deakins v. Monaghan, 484 U.S. 193, 202, 108 S. Ct. 523, 529-30, 98 L. Ed. 2d 529 (1988) (error for district court to dismiss rather than stay federal § 1983 action pending resolution of related state criminal proceedings); Mack v. Varelas, 835 F.2d 995, 998-1000 (2d Cir. 1987) (stay of § 1983 action "prudentially warranted" where one possible outcome of state criminal action would negate essential element of § 1983 claim); Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir. 1981) ("a federal court is not precluded, in the exercise of its discretion, from staying proceedings in the [civil] action before it pending a decision by the state court [in a related criminal action], with a view to avoiding wasteful duplication of judicial resources and having the benefit of the state court's views."); Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. 268, 269-70 (S.D.N.Y. 1995) (Kaplan, D.J. & Peck, M.J.) (staying a § 1983 action until resolution of a parallel state criminal action); Trustees of Plumbers & Pipefitters Nat'l Pension Fund v. Transworld Mechanical, Inc., 886 F. Supp. 1134, 1138 (S.D.N.Y. 1995) ("It is well-settled that a court has the discretionary authority to stay a case if the interests of justice so require."); Volmar Distribs., Inc. v. New York Post Co., 152 F.R.D. 36, 39, 42 (S.D.N.Y. 1993) (staying civil discovery until resolution of parallel state criminal proceedings, to "avoid duplication of effort and unnecessary litigation costs" and because "the outcome of the criminal case may encourage settlement" of the federal civil action).

 "A stay of the civil case, however, is an extraordinary remedy." Trustees v. Transworld Mechanical, 886 F. Supp. at 1139 (citing In re Par Pharm., Inc., 133 F.R.D. 12, 13 (S.D.N.Y. 1990)). This Court previously has summarized the factors to consider in deciding whether to grant a stay, as follows:


"When deciding whether to grant a stay, courts consider five factors: (1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest."

 Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. at 270 (quoting Volmar Distribs., Inc. v. New York Post Co., 152 F.R.D. at 39); see also, e.g., Trustees v. Transworld Mechanical, 886 F. Supp. at 1139. "Balancing these factors is a case-by-case determination, with the basic goal being to avoid prejudice." Volmar Distribs., Inc. v. New York Post Co., 152 F.R.D. at 39.

 It is undisputed that this action and the state criminal proceeding arise from C.O. Johnson's discovery of a make-shift weapon in plaintiff Joe Jackson's "cube" on January 9, 1996. Nevertheless, this case does not raise the concerns contemplated by courts that have granted stays.

 A stay is most appropriate "where a party under criminal indictment is required to defend a civil proceeding involving the same matter." Volmar Distribs., Inc. v. New York Post Co., 152 F.R.D. at 39. In such a case, denying a stay might impair the criminal defendant's Fifth Amendment privilege against self-incrimination. See, e.g., Trustees v. Transworld Mechanical, 886 F. Supp. at 1138, 1140-41; Volmar Distribs., Inc. v. New York Post Co., 152 F.R.D. at 39 (citing SEC v. Dresser Indus., Inc., 202 U.S. App. D.C. 345, 628 F.2d 1368, 1376 (D.C. Cir.), cert. denied, 449 U.S. 993, 101 S. Ct. 529, 66 L. Ed. 2d 289 (1980)). *fn3" Refusing to stay the civil action may also extend criminal discovery beyond the limits set forth in Federal Rule of Criminal Procedure 16(b), expose the criminal defense's theory to the prosecution in advance of trial, or otherwise prejudice the criminal case. See, e.g., SEC v. Dresser Indus., Inc., 628 F.2d at 1376; Estes-El v. Long Island Jewish Med. Ctr., 916 F. Supp. at 270; Trustees v. Transworld Mechanical, 886 F. Supp. at 1138; Volmar Distribs., Inc. v. New York Post Co., 152 F.R.D. at 39.

 In the present case, the party facing criminal prosecution is Joe Jackson. Thus, any Fifth Amendment considerations concern only Mr. Jackson, who has clearly indicated his opposition to staying the civil action. The only adverse affect posited by defendants from denial of a stay is that plaintiffs may withhold discovery on the grounds that the information could be used against Joe Jackson in the criminal proceeding. (See 10/21/97 Cardinale Letter at 2.) That argument is moot, however, because both parties have completed discovery, and Jackson did not withhold any civil discovery. Similarly, because the stay motion was brought on the eve of the discovery cutoff and discovery is now closed, there is no concern that Jackson will use civil discovery here to obtain an advantage in the criminal proceeding.

 In balancing the various interests at stake, the Court finds that a stay is inappropriate. There will be no adverse effect if the Court denies the stay, for the reasons discussed above. In contrast, plaintiffs have a legitimate interest in the expeditious resolution of this civil action. The Court notes that the criminal proceeding is now almost two years old, and there is no assurance that the criminal action will be completed at the January 6, 1998 hearing. In contrast, both Judge Kaplan and I tend to run "rocket dockets." Defendants' summary judgment motion is pending and will be decided in January 1998, after plaintiffs submit responsive papers. The summary judgment motion may well end this action, but if not, the Court is prepared promptly to try it. Accordingly, judicial efficiency would not be achieved by a stay of this action. *fn4" See, e.g., IBM Corp. v. Brown, 857 F. Supp. 1384, 1392 (C.D. Cal. 1994) ("A stay would disrupt the court's calendar by indefinitely postponing trial as the defendants' criminal proceedings wend their way through the state criminal justice system."); United States v. Banco Cafetero Int'l, 107 F.R.D. 361, 366 (S.D.N.Y. 1985) (denying stay of civil case where the criminal investigation had been going on for twenty months and no information had been submitted to show its present status or how long its resolution might take), aff'd, 797 F.2d 1154 (2d Cir. 1986); Clark v. Lutcher, 77 F.R.D. 415, 418 (M.D. Pa. 1977) (stay denied where no indication that criminal trial would be held in foreseeable future; "As time progresses, evidence becomes stale, memories dim, and the search for truth, always a difficult task, becomes more and more burdensome."). Weighing all the criteria here, a stay is not justified.


 For the reasons set forth above, I recommend that the Court deny defendants' motion to stay this action.


 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

 DATED: New York, New York

 December 2, 1997

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge

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