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Vogt v. City of Hays

United States District Court, D. Kansas

April 5, 2017

MATTHEW JACK DWIGHT VOGT, Plaintiff,
v.
CITY OF HAYS, KANSAS, Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER United States Magistrate Judge.

         This matter is before the Court on Defendant City of Hays' Motion to Stay this case pending its filing and disposition of a petition for writ of certiorari to the United States Supreme Court (ECF No. 39). On March 29, 2017, the Court conducted a telephone conference to discuss the motion and the scheduling of this case. Plaintiff appeared through counsel, Michael Miller and Morgan Roach. Defendant appeared through counsel, David Cooper. After review of the parties' briefing and considering the arguments of counsel, the Motion to Stay is DENIED as explained below.

         Background[1]

         Although the background of this action has been thoroughly discussed in previous opinions (see ECF Nos. 29, 37), a brief recitation of the facts is prudent. Plaintiff Matthew Vogt was employed by defendant City of Hays as a police officer, but in late 2013, while still employed by Hays, he sought employment with former defendant City of Haysville. During the hiring process, Vogt disclosed to Haysville that he had kept a knife he obtained while working as a Hays police officer. Former defendant Kevin Sexton, a police officer for Haysville, was directed by former defendant Jeff Whitfield, Chief of Police for Haysville, to extend an offer of employment to Vogt. The offer of employment was conditioned upon Vogt reporting his possession of the knife to the Hays police department.

         Upon reporting his possession of the knife to Hays, Vogt submitted his two weeks' notice of resignation to the Hays police department. The Hays department opened an internal investigation regarding Vogt's possession of the knife, but informed Vogt the investigation was regarding policy violations and not a criminal investigation. Vogt then gave a statement concerning his possession of the knife. The Hays department later suspended the internal investigation and requested a criminal investigation by the Kansas Bureau of Investigation, and turned all of the evidence, including Vogt's statements, over to the KBI.

         As a result of the criminal investigation, Haysville withdrew its offer of employment. In early 2014, Vogt was charged with two felony counts related to his possession of the knife. At the probable cause hearing, Vogt's statements were used as evidence. The charges were dismissed after the court determined there was no probable cause to support the charges.

         Procedural Posture

         Vogt brought this federal action against both the City of Hays and the City of Haysville, and multiple individual officers pursuant to 42 U.S.C. § 1983, alleging they violated his Fifth Amendment right to be free from self-incrimination. Defendants sought dismissal of the complaint on the basis that it failed to state a claim.

         On September 30, 2015, Senior U.S. District Judge Monti L. Belot entered judgment for all defendants, finding the right against self-incrimination is only a trial right and Vogt's statements were used in pretrial proceedings, not in a trial. (ECF No. 29.) After Plaintiff appealed the dismissal, on January 4, 2017, the Tenth Circuit Court of Appeals affirmed in part and reversed in part that judgment. (ECF No. 37.)[2] The Tenth Circuit affirmed the dismissal of the individual officers and the City of Haysville, but reversed the dismissal of the City of Hays and remanded the case to this Court for further proceedings against the single defendant.

         Following remand, this Court set the case for a scheduling conference (ECF No. 38). However, prior to the conference, Defendant filed its motion to stay (ECF No. 39), which Plaintiff opposes.

         Defendant's Motion to Stay (ECF No. 39)

         Defendant seeks to stay the scheduling and all other proceedings in this action to allow for the filing and disposition of its petition for a writ of certiorari to the United States Supreme Court. Because a circuit split exists over the definition of a “criminal case” under the Fifth Amendment, Defendant is hopeful the Supreme Court will take the case. Defendant contends, as a general rule, a stay of discovery is proper if a dispositive motion is likely to conclude a case, and analogizes its petition to a pending dispositive motion.

         Plaintiff argues defendant applied the incorrect legal standard in its motion, and the court lacks the authority to stay the case, especially in light of the Tenth Circuit's mandate to proceed. Plaintiff also contends it is highly unlikely the Supreme Court will grant Defendant's request for review.

         Legal ...


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