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D.S. v. The Geo Group, Inc.

United States District Court, D. New Mexico

March 2, 2017

D.S., I.M., and P.M., Plaintiffs,
v.
THE GEO GROUP, INC., CORIZON, INC., MARK ELLIOT WALDEN, M.D., WARDEN TIMOTHY B. HATCH and SHERRY PHILLIPS, Defendants.

          ORDER PARTIALLY LIFTING STAY

         THIS 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.

         I. Background

         The 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.

         Plaintiffs 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. 41.

         On June 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.

         The 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.

         Defendants 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.

         II. Analysis

         A court 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.

         1. ...


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