United States District Court, D. New Mexico
ORDER PARTIALLY LIFTING STAY
MATTER is before the Court on Plaintiff's Response in
Opposition to a continuation of the discovery stay of these
proceedings (Doc. 57), and Defendants' Status
Report (Doc. 58), both filed February 17, 2017.
Having considered the positions of the parties, and all
pertinent authority, the Court will partially lift the stay
previously entered in this case.
sole remaining Plaintiff in this case, I.M., alleges that
Defendant Mark Elliot Walden, M.D., examined his genitals and
performed rectal exams without gloves and without a nurse
present and performed unnecessary enemas on him while Walden
was a medical provider at the Northeast New Mexico Detention
Facility. Doc. 1-1 at 1, 11-12. These alleged acts
occurred in early 2012. Id. On January 31, 2013,
Defendant Walden received a target letter from the United
States Department of Justice (“DOJ”) concerning
these and other allegations. Doc. 13 at 2.
filed this civil lawsuit in state court on February 13, 2015,
and Defendants removed it to federal court on September 2,
2015. See Doc. 1. Thereafter, I stayed the
proceedings in this case on December 18, 2015, pending
resolution of the criminal investigation or further order of
this Court. See Doc. 37. The stay was imposed out of
concern for Defendant Walden's Fifth Amendment rights and
also to permit the parties to take part in an early
settlement conference before Magistrate Judge Lynch. See
Id. Although the conference was partially successful,
the case did not settle as to Plaintiff I.M. Doc.
8, 2016, approximately seven months after entry of the stay,
the Court held a joint hearing with Judge Lynch to assess
whether to continue the stay entered in this case and a
related case before him. See Doc. 54 (Clerk's
Minutes). At that time, the parties reported that the DOJ
intended to take action against Dr. Walden within the
following six months. Id. at 2. On that basis, I did
not disturb the stay in this action.
six-month period identified by the parties has since expired.
Thus, I recently directed the parties to file status updates
and their positions on continuing the stay. In their
responses, the parties indicate that the DOJ investigation
remains ongoing and, as of yet, no indictment has been
returned. They were unable to provide any further detail.
Doc. 58 at 2.
contend that the stay should continue at least until the
expiration of the five-year criminal statute of limitations,
which they calculate to be July 21, 2017. Id. at 1.
Plaintiff, on the other hand, argues that the Court should
lift the discovery stay because Walden may exercise his Fifth
Amendment rights in the future, regardless of the expiration
of the statute of limitations. See Doc. 57 at 1.
has broad discretion to grant or deny a motion to stay
proceedings premised upon a party's assertion of the
Fifth Amendment privilege. See Creative Consumer
Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080-81 (10th
Cir. 2009). Importantly,
[t]he Constitution does not generally require a stay of civil
proceedings pending the outcome of criminal proceedings,
absent substantial prejudice to a party's rights.
Keating v. Office of Thrift Supervision, 45 F.3d
322, 324 (9th Cir.1995); SEC v. Dresser Indus.,
Inc., 628 F.2d 1368, 1375 (D.C.Cir.1980). When deciding
whether the interests of justice seem to require a stay, the
court must consider the extent to which a party's Fifth
Amendment rights are implicated. Keating, 45 F.3d at
324. However, “[a] defendant has no absolute right not
to be forced to choose between testifying in a civil matter
and asserting his Fifth Amendment privilege.”
Id. at 326.
Id. at 1080. In determining whether to issue or
continue a stay, courts consider the following factors:
(1) the extent to which the issues in the criminal case
overlap with those presented in the civil case; (2) the
status of the case, including whether the defendant has been
indicted; (3) the interests of the plaintiffs in proceeding
expeditiously weighed against the prejudice to the plaintiffs
caused by the delay; (4) the private interests of and burden
on the defendant; (5) the interests of the courts; and (6)
the public interest.
C.G. et al. v. Walden et al., CIV 15-0250 MCA/WPL,
Doc. 63 at 3 (D.N.M. June 10, 2016) (quoting Hilda M. v.
Brown, CIV 10-2495 PAB/KMT, 2010 WL 5313755, at *3 (D.
Colo. Dec. 20, 2010)) (internal alterations omitted). The
Court will address these factors in turn.