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Fox v. Lackawanna County

United States District Court, M.D. Pennsylvania

May 23, 2018

TAMMY FOX, et al., Plaintiffs,
v.
LACKAWANNA COUNTY, et al., Defendants.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before me is Defendants' Joint Motion (Doc. 109) requesting that Plaintiffs' counsel be found in contempt of my January 20, 2017 Order enjoining Plaintiffs' counsel “from publicly opining on or vouching for the favorable value of the evidence to their clients' case.” (Doc. 81). Plaintiffs have responded by filing a Motion to Strike Joint Motion for Contempt. (Doc. 110). Because Plaintiffs' counsel did not violate the January 20, 2017 Order, the motion for contempt will be denied and the motion to strike will be denied as moot.

         I. Background

         As set forth in detail in my opinion granting in part and denying in part Defendants' motions to dismiss the Second Amended Complaint, the instant action filed on July 22, 2016 involves allegations of sexual abuse of female inmates by corrections officers at the Lackawanna County Prison and the ensuing cover-up and concealment of same by various officials of Lackawanna County. (See Doc. 84, generally).

         On December 14, 2016, Defendants Lackawanna County and Commissioner Patrick O'Malley filed a motion for a protective order to enjoin Plaintiffs and their counsel from making extrajudicial statements regarding this litigation. (See Doc. 53, generally). The County and O'Malley premised their motion on the position that Plaintiffs and their counsel were waging “a campaign to try this case in the media, instead of a court of law.” (Id. at ¶ 10). They also relied on a “litany” of extrajudicial statements by Plaintiffs' counsel to media outlets which they contended impaired their right to a fair trial. (Id. at ¶¶ 12-16). Plaintiffs opposed the motion. (See Doc. 66, generally).

         The motion to enjoin Plaintiffs' counsel from making extrajudicial statements about this case was granted by Order on January 20, 2017. (See Doc. 81, generally). Therein, I noted that the motion raised issues of the right to free speech, right to a fair trial, and ethical considerations of the legal profession. (See id.). Framing the question as whether there was “a substantial likelihood that any of the statements will cause material prejudice to the proceeding, ” I concluded that “any statements in which counsel opines or vouches for the favorable value of the evidence to his case, the likelihood of material prejudice to this proceeding is present.” (Id.). I therefore enjoined Plaintiffs' counsel “from publically opining on or vouching for the favorable value of the evidence to their clients' case.” (Id.).

         A year later, on February 14, 2018, seven (7) current or former employees of the Lackawanna County Correctional Facility (four (4) of which are Defendants in this case) were arrested on various charges related to institutional sexual assault. (See Doc. 107, 3). Two days later, the Scranton Times-Tribune published an article entitled “State AG: Not the final chapter in Lackawanna County Prison arrests.” (Doc. 109, Ex. “2”). Plaintiffs' counsel is quoted in that article:

“I can say at the heart of my civil case, I am most concerned with the culture of silence that allowed this to happen for decades.” . . . “The authority figures at that jail that said nothing bear much of the responsibility. As you can see, it's not as simple as one bad apple.”

(Id.).

         On March 1, 2018, Lackawanna County Correctional Defendants submitted a brief in further support of a motion to stay this action. (See Doc. 105, generally). Correctional Defendants argued that the commencement of criminal proceedings and the likelihood of additional arrests and criminal charges supported a stay of this case.

(See id. at 5-8).

         The Scranton Times-Tribune ran an article the following day regarding Plaintiffs' opposition to the request for a stay. (See Doc. 109, Ex. “3”). The article reports:

Contacted Thursday, Comerford said the arrests do not change his position regarding postponing the case. He said [defense counsel] McDonough's claim that some of the defendants will invoke the Fifth Amendment is speculative.
“What are they hiding?” Comerford asked. “There needs to be an affirmative statement from all, from O'Malley down to the lowest-ranking correctional officer, ...

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