The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
D.T., a minor, by and through his )
parent/guardian and next friend ELISHA )
THORTON, et al. )
)
)
Plaintiffs, )
)
v. )
Case No. 24-cv-00390-SH
)
INDEPENDENT SCHOOL DISTRICT )
NO. I-002, CREEK COUNTY, )
OKLAHOMA a/k/a BRISTOW PUBLIC )
SCHOOLS, and FLOYD C. ROBINSON, )
individually, )
)
Defendants. )
OPINION AND ORDER
Before the Court are Defendant Floyd Robinson’s (“Robinson”) motion to stay civil
proceedings and motion to stay deadline for filing answer.1 Robinson maintains this case
must be stayed until the conclusion of a related criminal case to preserve his Fifth
Amendment privilege against self-incrimination. The Court finds Robinson can be
protected by alternative, less drastic measures. The Court further finds that staying the
answer is not warranted. Both motions will be denied.
Background
Plaintiffs allege they were minor students at Independent School District No. I-
002 of Creek County, Oklahoma a/k/a Bristow Public Schools (“BPS”) during the 2023–
2024 academic school year. (ECF No. 2 ¶ 21.) On February 27, 2024, Plaintiffs allege
Robinson, a BPS coach, recorded them while they were changing in the track locker room.
1 The parties have consented to the jurisdiction of a U.S. Magistrate Judge for all purposes
under 28 U.S.C. § 636(c)(1) and Fed. R. Civ. P. 73(a). (ECF No. 23.)
(Id. ¶¶ 22, 24.) After the incident was reported, local police allegedly discovered a video
on Robinson’s phone that showed many of the Plaintiffs undressing, including some who
were completely nude. (Id. ¶ 26.) Plaintiffs further allege that Robinson has a decades-
long history of exhibiting inappropriate sexual behavior towards male students (id. ¶¶ 18,
28); BPS had knowledge of this behavior since 1993 (id. ¶ 28); and BPS allowed this
behavior to continue despite such knowledge (id. ¶ 33). (See also id. ¶¶ 29–30, 32 (citing
other alleged incidents).)
Robinson was arrested for crimes related to the February 27, 2024 incident, and
has been charged in Creek County District Court in case number CF-2024-16 for
procuring child pornography and other charges. (Id. ¶¶ 27, 37.) His case is set for
preliminary hearing on February 14, 2025. See State v. Robinson, No. CF-2024-16, Mot.
for Continuance & Order (Creek Cty. Dist. Ct. Dec. 13, 2024).2
On August 23, 2024, Plaintiffs filed this suit. (ECF No. 2.) Plaintiffs assert claims
against BPS for negligence under the Oklahoma Governmental Tort Claims Act, Okla.
Stat. tit. 51, §§ 151–172, and negligence per se; violation of their Fourteenth Amendment
rights under 42 U.S.C. § 1983; and violation of Title IX of the Education Amendments of
1972, 20 U.S.C. §§ 1681—1689. (Id. ¶¶ 38–93.) Plaintiffs assert claims against Robinson
for gross negligence, invasion of privacy and/or seclusion, assault and battery, and
intentional infliction of emotional distress. (Id. ¶¶ 94–113.)
2 The motion to stay includes a copy of the state court docket sheet (ECF No. 9-1), but
there have been additional entries since its submission. The Court takes judicial notice of
these additional entries, as they have a direct relation to the motions before the Court.
See St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal
courts, in appropriate circumstances, may take notice of proceedings in other courts, both
within and without the federal judicial system, if those proceedings have a direct relation
to matters at issue.”). The docket is available at
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=bristow&number=CF-
2024-16 (last visited Jan. 29, 2025).
Robinson moves for a stay of all civil proceedings until his criminal case is tried.
(ECF No. 9.) Robinson separately moves to stay his deadline to file an answer. (ECF No.
10.) Plaintiffs oppose both motions. (ECF Nos. 13–14.) BPS does not. (ECF No. 26.)
Analysis
I. Legal Standard
Robinson requests the Court impose a stay to protect his Fifth Amendment
privilege against self-incrimination.3 “The Constitution does not generally require a stay
of civil proceedings pending the outcome of criminal proceedings, absent substantial
prejudice to a party's rights.” Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d
1070, 1080 (10th Cir. 2009); see also id. (explaining a defendant “has no absolute right
not to be forced to choose between testifying in a civil matter and asserting his Fifth
Amendment privilege” (quoting Keating v. Off. of Thrift Supervision, 45 F.3d 322, 326
(9th Cir. 1995))). However, the Court may use its discretion to stay civil proceedings when
justice so requires. In re CFS-Related Sec. Fraud Litig., 256 F. Supp. 2d 1227, 1236 (N.D.
Okla. 2003). In determining whether the interests of justice require a stay, the Court
must consider how the Fifth Amendment privilege against self-incrimination is
implicated. Creative Consumer Concepts, 563 F.3d at 1080. A stay of civil proceedings
while related criminal proceedings are pending may also be appropriate to prevent the
3 The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself . . . .” U.S. Const. amend. V. Though framed in the
criminal context, the privilege against self-incrimination “can be asserted in any
proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.”
Bialek v. Mukasey, 529 F.3d 1267, 1272 (10th Cir. 2008) (quoting Kastigar v. United
States, 406 U.S. 441, 444 (1972)). The privilege extends not only to answers that would
support a conviction but to any information that would “furnish a link in the chain of
evidence that could lead to prosecution.” United States v. Rivas-Macias, 537 F.3d 1271,
1278 (10th Cir. 2008) (quoting Maness v. Meyers, 419 U.S. 449, 461 (1975)).
parties from “taking advantage of broader civil discovery rights or to prevent the exposure
of the criminal defense strategy to the prosecution.” Id.
Courts within the Tenth Circuit typically balance the following six factors in
determining whether a stay is appropriate: (1) the overlap between civil and criminal
cases; (2) the status of the criminal case, including whether the defendant has been
indicted (i.e., whether charges have been filed); (3) the plaintiffs’ private interest in
proceeding expeditiously versus the prejudice caused by a delay; (4) the private interests
of and burden on the defendant; (5) the Court’s interest; and (6) the public’s interest. See,
e.g., In re CFS-Related Sec. Fraud Litig., 256 F. Supp. 2d at 1236–37; Obispo v. Ishkiret’s
Grp., No. CIV-24-889, 2024 WL 5056643, at *2 (W.D. Okla. Dec. 10, 2024); J.O. v. Bd.
of Educ. of Albuquerque Pub. Schs., No. 23-cv-01021, 2024 WL 3181442, at *2 (D.N.M.
June 26, 2024); Davis v. True, No. 21-cv-03305, 2022 WL 425238, at *2 (D. Colo. Feb.
10, 2022); Garcia v. City of Leavenworth, No. 19-2049, 2019 WL 3302306, at *2 (D. Kan.
July 23, 2019). The Court addresses each factor in turn.
II. Application of Six-Factor Test
A. Overlap of Issues
Some courts have held that the extent of overlap between civil and criminal cases
is the “most important factor in ruling on a motion to stay.” S.E.C. v. Gordon, No. 09-
CV-0061-CVE-FHM, 2009 WL 2252119, at *4 (N.D. Okla. July 28, 2009) (quoting S.E.C.
v. Nicholas, 569 F. Supp. 2d 1065, 1070 (C.D. Cal. 2008)). Self-incrimination is more
likely to occur when there is significant overlap; however, if there is no overlap, there is
no danger of self-incrimination and no need for a stay. Trustees of Plumbers & Pipefitters
Nat. Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995).
Plaintiffs concede “the criminal case at issue concerns the same facts and
allegations as the underlying civil case.” (ECF No. 13 at 3.4) This factor weighs in favor
of granting the stay.
B. Status of Criminal Case
The second factor looks to the status of the criminal case, including whether
charges have been filed. “A stay is most appropriate after charges have been filed because
‘the likelihood that a defendant may make incriminating statements is greatest after an
indictment has issued,’ and ‘the prejudice to the plaintiffs in the civil case is reduced since
the criminal case will likely be quickly resolved . . . .’” Obispo, 2024 WL 5056643, at *4
(quoting Transworld Mech., 886 F. Supp. at 1139); but cf. Garcia, 2019 WL 3302306, at
*2 (finding factor weighed against stay where indictment was filed, but no trial date was
set and defendant was essentially asking for an indefinite stay).
A criminal information was filed against Robinson in Creek County on February
28, 2024. (ECF No. 9-1 at 1.) However, the case has not significantly progressed since
then. No preliminary hearing has occurred,5 no trial date has been set,6 and there is no
indication when this case would be resolved. With no trial date set, Robinson’s request
for a stay until his criminal case is tried is, in effect, a request for an indefinite stay. (See
4 References to page numbers refer to the ECF header.
5 So far, the preliminary hearing has been set three times. First, the preliminary hearing
was set for September 16, 2024, but the State requested a continuance because it did not
have all evidence related to the case. State v. Robinson, No. CF-2024-16, Mot. for
Continuance & Order (Creek Cty. Dist. Ct. Sept. 18, 2024). Second, the preliminary
hearing was set for December 13, 2024, but the State requested a continuance with the
agreement of Robinson’s attorney. State v. Robinson, No. CF-2024-16, Mot. for
Continuance & Order (Creek Cty. Dist. Ct. Dec. 13, 2024). Third, the latest preliminary
hearing is set for February 14, 2025. See id.
6 The state court docket does not show Robinson’s case has been set for trial, and
Robinson only asks the Court for a stay until his criminal case is tried. But, there is
ECF No. 9 at 1.) Under these circumstances, the Court finds this factor weighs in favor of
denying the stay. See Garcia, 2019 WL 3302306, at *2.
C. Plaintiffs’ Interests
The third factor weighs Plaintiffs’ interest in proceeding expeditiously against any
prejudice a delay would cause them. Plaintiffs have a “substantial interest” in the prompt
resolution of their claims, Yazzie v. Fezatte, No. 16-CV-00472, 2019 WL 1865204, at *5
(D.N.M. Apr. 25, 2019), which necessarily includes a “speedy discovery process,” In re
CFS-Related Sec. Fraud Litig., 256 F. Supp. 2d at 1239 (quoting Digit. Equip. Corp. v.
Currie Enters., 142 F.R.D 8, 12 (D. Mass. 1991)).
Plaintiffs argue a stay is prejudicial because: (1) it prevents them from “mov[ing]
forward with their lives”; (2) discovery will already take significant time, particularly
given the large number of parties; (3) Plaintiffs may move outside the state once they
graduate high school or reach the age of majority; and (4) a delay may result in the loss of
memories and evidence.7 (ECF No. 13 at 4–5; see also id. at 1 (noting witnesses range
from school age to elderly).)
In considering a plaintiff’s potential prejudice, courts regularly consider the length
of the requested stay, and stays for an indefinite period of time are more likely to be
considered prejudicial. See, e.g., Harris v. McCurtain Cnty. Jail Trust, No. 22-cv-187,
2024 WL 3443885, at *3 (E.D. Okla. July 17, 2024) (“Defendants are requesting a stay of
the entire case for an indefinite period which would continue to deny the Plaintiff his day
in court . . . .”); J.O., 2024 WL 3181442, at *4 (“The Court finds that granting a stay of
7 While the undersigned does not treat the facts as established, the Court in Robinson’s
criminal case further stated last year that he is 74, has diabetes, and is in need of medical
attention. See State v. Robinson, No. CF-2024-16, Order (Creek Cty. Dist. Ct. Mar. 19,
2024). If true, Robinson’s age and poor health would further support a conclusion that
the stay would be prejudicial to Plaintiffs.
indefinite duration would prejudice J.O. and that this factor weighs heavily against doing
so.”); Brown v. Tennison, No. 19-cv-00941, 2020 WL 12371300, at *3 (D. Colo. Jan. 13,
2020) (“But an indefinite stay would place a serious infringement on Plaintiffs’ interest
to resolve this matter expeditiously. The uncertainty concerning the duration of a stay
premised on resolution of [defendant’s] criminal matter disfavors a stay.”).8
As explained above, Robinson is requesting an indefinite stay. Plaintiffs have
provided many reasons why this would be prejudicial, which Robinson has not disputed.
The Court finds these arguments persuasive. This factor weighs in favor of denying the
stay.
D. Robinson’s Interests
The fourth factor evaluates the private interests of and burden on the defendant.
Robinson has a “clear interest in protecting himself from self-incrimination during” civil
discovery. Stohr v. Scharer, No. 17-1018, 2018 WL 2427427, at *3 (D. Kan. May 30,
2018). If a stay is not entered, Robinson argues he would be forced to “choose between
waiving Fifth Amendment rights to defend himself in this suit or ‘asserting the privilege
and probably losing the civil case.’” (ECF No. 9 at 4 (citation omitted); see also id. at 2
(arguing discovery will force him to reveal his criminal defense strategy).) Plaintiffs argue
and stay is not necessary, because less burdensome tools are available to protect
Robinson’s interests and limit his burdens. (ECF No. 13 at 5.)
“The Fifth Amendment does not forbid adverse inferences against parties to civil
actions when they refuse to testify in response to probative evidence offered against them
8 In Harris and J.O., there were no pending criminal proceedings. See 2024 WL 3443885,
at *3; 2024 WL 3181442, at *4. In Brown, the criminal trial was scheduled for only a
month out, but the civil court found the criminal court might continue the trial date due
to ongoing negotiations. 2020 WL 12371300, at *3.
. . . .” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Thus, without any safeguards,
Robinson is correct that he would have to decide between invoking his Fifth Amendment
privilege with the risk of adverse inferences or responding to civil discovery with the risk
that his responses will be used against him in his criminal case. Digit. Equip. Corp., 142
F.R.D at 13. While this choice is not unconstitutional, it no doubt creates a significant
burden. Chao v. Fleming, 498 F. Supp. 2d 1034, 1039 (W.D. Mich. 2007); Jackson v.
Boars Nest Bar & Grill, No. 18-3154, 2019 WL 13116567, at *3 (C.D. Ill. Sept. 25, 2019).
That said, the Court agrees with Plaintiffs that Robinson’s Fifth Amendment rights
can be protected without issuing an indefinite stay. See Digit. Equip. Corp., 142 F.R.D. at
13 n.9 (“[A] general stay of all civil discovery is not by any means the best option available
to the court or to the litigants.” (citation and internal quotation marks omitted)). Other
less drastic methods, including protective orders, a sealed deposition, and sealed
interrogatories, would provide adequate protection to Robinson and allow this case to
move forward.9 See In re CFS-Related Sec. Fraud Litig., 256 F. Supp. 2d at 1240–41
(denying motion to stay discovery and ordering that defendant’s deposition be sealed and
not be used for any purpose outside civil proceeding except perjury or impeachment);
Garcia, 2019 WL 3302306, at *3 (finding use of protective orders, sealed
depositions/interrogatories, and stays limited in time or subject matter would adequately
protect defendant). This factor weighs in favor of denying the stay.
E. The Court’s Interests
The Court’s primary interest is in the “quick and efficient management of its
caseload.” Garcia, 2019 WL 3302306, at *4. Staying a civil case until completion of
9 This list is illustrative and is not intended to limit the parties’ ability to seek alternative
forms of protection for Robinson.
related criminal proceedings “is inconvenient for the court, especially where—like in
[Robinson’s] situation—there is no date set for the criminal trial.” ESG Cap. Partners LP
v. Stratos, 22 F. Supp. 3d 1042, 1047 (C.D. Cal. May 16, 2014); see also Stone v. Vail
Resorts Dev. Co., No. 09-cv-02081, 2010 WL 148278, at *3 (D. Colo. Jan. 7, 2010)
(explaining an ill-advised stay leads to a “less predictable” and “less manageable” docket).
However, “resolution of the criminal case may (1) increase the possibility of settlement of
the civil case, and (2) ‘may reduce the scope of discovery in the civil case [as] the evidence
gathered during the criminal prosecution can later be used in the civil action.’” Berreth
v. Frazee, No. 19-cv-00027, 2019 WL 10250759, at *2 (D. Colo. Apr. 1, 2019) (quoting
Transworld Mech., 886 F. Supp. at 1140). While there are some benefits to granting the
stay, the Court finds on balance a stay would result in judicial inefficiency and
unnecessary delay. This factor weighs in favor of denying the stay.
F. The Public’s Interests
The public has an interest in both the “prompt resolution of civil cases” and the
“fair prosecution of criminal cases.” Garcia, 2019 WL 3302306, at *3 (quoting Digit.
Equip. Corp., 142 F.R.D at 14). Because Robinson’s constitutional rights can be protected
through alternative means, the Court finds this factor weighs in favor of denying the stay.
III. Robinson’s Motion to Stay His Answer Date
The parties focus their briefing on Robinson’s motion to stay the case as a whole.
And, as noted above, much of the case law is focused on the Fifth Amendment risks
presented by discovery. Robinson separately asks that his answer or motion deadline be
stayed, but offers no additional legal support for this request. The Court finds that the
reasons supporting a denial of the stay of the full case further support a denial of the
motion to extend the answer deadline.!” The burdens Robinson faces in choosing to deny
or admit allegations—or assert his Fifth Amendment rights where appropriate—are less
than those faced when a defendant is testifying or answering interrogatories under oath.
The other factors weighing against the stay, however, are not lessened. This separate
motion will also be denied.
Conclusion
On balance, the factors weigh in favor of denying the stay. Although Plaintiffs
concede there is overlap between the civil and criminal cases, the Court finds Robinson’s
Fifth Amendment rights can be protected through the use of less drastic tools.
IT IS THEREFORE ORDERED that Defendant Robinson’s Motion to Stay Civil
Proceedings (ECF No. 9) and Defendant Robinson’s Motion to Stay Deadline for Filing
Answer (ECF No. 10) are DENIED. Robinson shall answer, file motions, or otherwise
respond to the complaint within 14 days of this order.
ORDERED this 30th day of January, 2025.
lg S&S
UNITED STATES DISTRICT COURT
‘© Given that any motion at this stage of the proceedings would necessarily be based on
the pleadings or facts unrelated to the merits, the Court does not discern any risk to
Robinson in filing a Rule 12 motion.
10