Wodiuk v. Pueblo Cnty. Sheriff's Dep't Caitlin Graziano
| Decision Date | 06 June 2017 |
| Docket Number | Civil Action No. 14-cv-02931-WJM-CBS |
| Parties | HEIDI WODIUK, Plaintiff, v. PUEBLO COUNTY SHERIFF'S DEPARTMENT OFFICER CAITLIN GRAZIANO, in her individual and official capacity. Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER ON PENDING MOTIONS
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's1 "Motion to Dismiss for Failure to Prosecute" (doc. #201), filed on February 23, 2017; and (3) Plaintiff Wodiuk's "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), filed on May 18, 2017. None of these motions, to date, has generated a response from the opposing party. However, given the unusual posture of this case and the issues raised in the pending motions, the court will address them all at this time.
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").2 Ms. Wodiuk argues that she is financially eligible "for the appointment of counsel from the Criminal Justice Act (CJA) Panel, 18 U.S.C. § 3006A(a)(1)(C)-(E)," and "need[s] federal counsel for Pueblo trial court" because of "federal subject matter case tried outside its jurisdiction." This motion is denied for the following reasons.
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.3 The Pueblo County District Court appointed Michael Lee Garcia, Esq. to serve as Ms. Wodiuk'salternate defense counsel on December 7, 2016. See Colo. Rev. Stat. § 21-2-101(1) ().4 I also note that Ms. Wodiuk filed a "Notice of: Case 15 CR1287 Status" (doc. #199) with this court on February 15, 2017, in which she specifically referenced her "attorney Michael Garcia."5
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) ().
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.6
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 takenno 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.7
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) () (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 remainsadministratively 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."8 See Complaint, at ¶ 8. The Complaint asserts two claims under the Fourth Amendment: first, that Officer Grazianio "conducted an unreasonable search and seizure of Wodiuk's person," and second, that she used excessive force by "pulling Wodiuk out of her car, kneeing her in the back, and otherwise using a significant degree of force on a person who was not resisting in any way." Id. at ¶¶ 16 and 24. When this lawsuit was filed on October 24, 2014, Ms. Wodiuk was represented by Anthony J. Viorst, Esq.
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.9 During her deposition, defense counsel asked Ms. Wodiuk to "[t]ell me what happened" in the parking lot of the Kohl's Department Store.10 Plaintiff provided a lengthy account of that day's events without invoking her Fifth Amendment right against self-incrimination. The latter point is significant. During the same deposition, when defense counsel asked about rental properties that are owned by Ms. Wodiuk and also include Michael Franti11 on the deeds, Plaintiff responded that she was "not at liberty to discuss any of those matters at this time." Mr. Viorst alluded to "[s]ome criminal investigation" regarding Mr.Franti's relationship to those properties, but conceded that he was not exactly certain what "investigation is going on." For that reason, counsel stated that Ms. Wodiuk was invoking her Fifth Amendment rights as to"any further questions on Michael Franti or...
To continue reading
Request your trial