United States District Court, D. South Dakota, Western Division
COLENE BALD EAGLE; SHAWN IMITATES DOG, Personal Representative for the Estate of THERESA IMITATES DOG-MARTINEZ; and AUDREY YELLOW HAIR, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
in Colene Bald Eagle v. United States, CIV.
16-5039-JLV, Docket 1, Shawn Imitates Dog v. United
States, CIV. 16-5040-JLV, Docket 1, and Audrey
Yellow Hair, CIV. 16-5046-JLV, Docket 1, brought Federal
Tort Claims Act ("FTCA") suits against the
government arising out of the same motor vehicle collision
which occurred on U.S. Highway 18 near mile marker 112 at its
intersection with BIA Road 27, known as Wounded Knee Junction
in rural Oglala Lakota County, South Dakota, on July 30,
2015. In accord with Fed.R.Civ.P. 42(a)(2) the court
consolidated the cases. (Docket 14).
essence of plaintiffs' claims is that the vehicle in
which they were traveling was stuck by a Oglala Sioux Tribe
corrections transport vehicle being operated by Sophia Janis
Blacksmith. (Docket 1 ¶ 7). Theresa Imitates
Dog-Martinez,  a passenger in Ms. Bald Eagle's
vehicle, was killed as a result of the collision.
Id. ¶ 11. Plaintiffs allege Ms. Blacksmith, an
employee of the Oglala Sioux Tribe Police Department,
"owed a duty of care to Plaintiff[s] to exercise
ordinary care and awareness in the operation, management,
maintenance and control of the Oglala Sioux Tribe Corrections
transport vehicle." Id. ¶ 15. Plaintiffs
allege Ms. Blacksmith was acting "negligently and
carelessly [and] departed from the proper standard which
caused the collision." Id. ¶ 16.
Plaintiffs allege the defendant and the Department of
Interior, Bureau of Indian Affairs, acting through Ms.
Blacksmith breached their duties to plaintiffs and "were
negligent in several respects, including, but not limited to:
(a) Failing to keep a proper lookout for other vehicles;
(b) Failing to keep Defendant's vehicle under control;
(c) Failure to obey traffic laws; [and]
(d) Otherwise generally failing to operate the vehicle in a
safe and prudent manner.
Id. ¶ 17.
government filed a motion to stay all proceedings in the case
until "the related criminal charges pending against
Sophia Janis Blacksmith-the government employee whose conduct
is at issue in both the criminal case and the
above-referenced case-are resolved." (Docket 8 at p.
1). Ms. Blacksmith was indicted by a grand jury in the
Western Division of the United States District Court for the
District of South Dakota in a case captioned United
States v. Sophia Janis, CR. 16-50018-JLV (D.S.D. 2016),
for the offense of involuntary manslaughter in violation of
18 U.S.C. §§ 1153 and 1112. (Docket 8-2).
government seeks a stay of all proceeding in this civil case
because Ms. Blacksmith's attorney in the criminal case
"has confirmed that, while criminal charges are pending,
she will not answer questions without the presence of her
counsel. . . . [and will] likely . . . plead the Fifth
Amendment and refuse to answer any questions about her
driving or the events of July 30, 2015, whether in a
deposition, in response to written discovery, or even in an
investigative interview with the United States." (Docket
8-1 at p. 2).
government asserts the court "may, in the interest of
justice, at its discretion, stay a civil action until
completion of parallel criminal proceedings."
Id. (referencing United States v. Kordel,
397 U.S. 1, 12 n.27 (1970)). The government contends that
"the criminal proceeding against Blacksmith and the
current civil case are so intertwined that the United States
cannot defend the civil suit until the criminal case is
completed; the prejudice faced by the United States should a
stay not be granted is significant." Id. at pp.
2-3. The government argues the burden on the plaintiffs by a
stay is "slight" and they "will not be
significantly harmed if this case is stayed the short time
until the criminal matter is resolved." Id. at
resist the government's motion. (Docket 12). Plaintiffs
argue the government does not qualify as a
"defendant" in the criminal proceedings.
Id. at p. 5. Plaintiffs contend it is disingenuous
for the government to claim it cannot resolve liability in
this FTCA action after the government obtained an indictment,
based on evidence it presented to the grand jury, alleging
Ms. Blacksmith was "grossly negligent."
Id. at p. 6 (referencing Docket 8-2). According to
plaintiffs, indicting Ms. Blacksmith for involuntary
manslaughter "speaks for itself in regard to
liability." Id. at p. 7. Plaintiffs argue the
only issues remaining are causation and damages suffered by
each plaintiff. Id. Plaintiffs assert that if a stay
is granted, they will be prevented from obtaining discovery
and preparing the case for trial. Id. at p. 10.
response, the government argues that "[d]efending Ms.
Blacksmith's conduct in the civil case without her
cooperation is, in fact, impossible to do effectively.
Additionally, this case involves more than just Ms.
Blacksmith's conduct: there may be questions of
contributory negligence, for example, which again require Ms.
Blacksmith's cooperation, or at least the opportunity to
question her." (Docket 13 at pp. 1-2).
government contends plaintiffs' claim that the indictment
is an admission of liability is legally inaccurate. The
government argues "[t]he actions and interests of the
federal prosecutor in a criminal case cannot be conflated
with the interests of the United States in defending itself
from tort liability in civil court pursuant to the Federal
Tort Claims Act." Id. at p. 2. The government
also asserts the plaintiffs' contention that the
government will continue its civil discovery through the
criminal prosecution is inaccurate because "the entire
United States Attorney's Office for the District of South
Dakota has been recused from any involvement with this civil
case .... [and the Civil Division attorneys of the Department
of Justice] will be in exactly the same ...