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McCauley v. Sierra County Board of County Commissioners

United States District Court, D. New Mexico

August 8, 2017

CINDY MCCAULEY, As Next Friend of NATHAN WASSON, Plaintiff,
v.
SIERRA COUNTY BOARD OF COUNTY COMMISSIONERS, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court pursuant to Plaintiff's Motion to Compel (doc. 62). The Court held a hearing held on the motion on July 7, 2017. Doc. 82. Having considered the motion and arguments presented, the Court will GRANT IN PART AND DENY IN PART the motion.

         I. Background

         In her Second Amended Complaint, Plaintiff Cindy McCauley brings claims against Defendants Sierra County Board of County Commissioners, Curtis Cherry, Vergil Eaton, Thomas Schalkofski, and John/Jane Doe on behalf of her son Nathan Wasson, an individual with mental disabilities without the capacity to bring suit. See doc. 43 at 1-3. Plaintiff is suing Defendants for alleged (1) violation of substantive due process, (2) violation of procedural due process, and (3) maintaining a custom and policy of violating constitutional rights. See id. at 8-18.

         Plaintiff alleges that Defendants failed to provide Mr. Wasson with adequate mental health care or humane conditions during his confinement at the Sierra County Detention Facility (SCDF). Id. at 8-11. Plaintiff alleges that Mr. Wasson was provided no medical or mental health services during his incarceration, and that he began to physically and mentally deteriorate as a result. Id. at 8-9. Plaintiff alleges that Defendants Eaton, Schalkofski, Hamilton, and Cherry recognized Mr. Wasson's mental illness and inability to keep his cell sanitary, yet they refused to clean his cell and allowed the unsanitary conditions to continue. Id. at 8-11.

         Pertinent to the resolution of the present motion, Plaintiff also alleges that certain former detention officers abused medications that were prescribed to inmates and engaged in sexual misconduct with inmates. Id. at 13-16. Specifically, Plaintiff alleges that Defendant Eaton was one of the detention officers charged with criminal sexual contact and criminal sexual penetration of inmates in his custody. Id. at 16. As part of the basis of her municipal liability claim, Plaintiff asserts that this misconduct was known yet allowed to continue by final policymaker Defendant Cherry, such that it amounted to a policy or custom that was the moving force behind the constitutional violations alleged by Plaintiff. See Id. at 12-18.

         II. Legal Standard

         a. General Discovery Rules

          “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . .” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

         Under Federal Rule of Civil Procedure 34(a), “[a] party may serve on any other party a request within the scope of Rule 26(b) . . . to produce and permit the requesting party or its representative to inspect, copy, test, or sample” certain items which are “in the responding party's possession, custody, or control.” Fed.R.Civ.P. 34(a). This rule “enables a party seeking discovery to require production of documents beyond the actual possession of the opposing party, if such party has retained any right or ability to influence the person in whose possession the documents lie.” Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 517 (D. Kan. 2007) (internal quotations and citation omitted). Therefore, “[p]arties responding to requests propounded pursuant to [Rule 34] have a duty to produce all responsive documents in their possession, custody[, ] or control[, ]” and a party who fails to state whether a particular responsive document is in its possession, custody[, ] or control may be required to “affirmatively state so in a supplemental response.” Starlight International, Inc. v. Herlihy, 186 F.R.D. 626, 643 (D. Kan. 1999); Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 307 (D. Kan. 1996).

         Under Federal Rule of Civil Procedure 37(a), a party is permitted to file a motion to compel responses to properly propounded discovery. See Fed. R. Civ. P. 37(a). A court may limit discovery if a request is not “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         b. Fifth Amendment Privilege

         The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V. The Fifth Amendment privilege against self-incrimination “protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 444-45 (1972). “The privilege afforded not only extends to answers that would in themselves support a conviction[, ] but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.” Malloy v. Hogan, 378 U.S. 1, 11 (1964) (quotation omitted). Further, the Fifth Amendment “privileges [a defendant] not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984).

         Finally, the

[e]xercise of the privilege against self-incrimination [] does not depend upon a judgeʹs prediction of the likelihood of prosecution. Resnover v. Pearson, 965 F.2d 1453, 1462 (7th Cir. 1992). “[C]ourts should not engage in raw speculation as to whether the government will actually prosecute.” United States v. Sharp, 920 F.2d 1167, 1171 (4th Cir. 1990). That prosecution is possible is enough absent clear evidence of an absolute bar to prosecution. Id. “[I]t is only when there is but a fanciful possibility of prosecution that a claim of Fifth Amendment privilege is not well taken.” In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979).

United States v. Nipper, 210 F.Supp.2d 1259, 1261 (N.D. Okla. 2002).

         III. Analysis

         Plaintiff moves the Court to compel Defendant Eaton to provide amended responses to several interrogatories and requests for admission. Doc. 62. The Court will analyze the requests in turn.

         (i) Interrogatory 7 Plaintiff's Interrogatory 7 provides:

How many inmates did you have sexual contact with in SCDF? In your Answer, please list the names of each inmate which you had sexual contact with.

Doc. 62-3 at 2. Defendant Eaton provided the following objections to Interrogatory 7: (1)

         Fifth Amendment privilege against self-incrimination; (2) relevance; (3) argumentative and improperly assumes facts; (4) purpose is to annoy, embarrass, and harass; and (5) unlikely to lead to admissible evidence. Id. at 2-3. Notwithstanding those objections, Defendant Eaton provided the following response:

In September 2016, I pleaded guilty to Criminal Sexual Penetration in the Second Degree (Position of Authority Over Inmate) without admitting to the criminal act, pursuant to North Carolina v. Alford. The victims were Bree Oldfield and Tammy Montgomery. For specific case information, see my answer to Interrogatory 2.
However, with regard to any other inmate, I invoke the Fifth Amendment to the United States Constitution and decline to answer this Interrogatory on that basis, in addition to any other objections made by counsel.

Id. at 3.

         The Court overrules all objections with the exception of the assertion of Fifth Amendment privilege. The Court finds that the information requested is relevant because Defendant Eaton served as the direct supervisor of the guards who were overseeing Mr. Wasson. See doc. 82 at 1-2. Evidence suggesting that Defendant Eaton was focused on satisfying his sexual conquests while on the job supports Plaintiff's allegation that Defendant Eaton neglected his duties and allowed mistreatment of Mr. Wasson to occur. Although the information requested only indirectly supports this allegation, the information is not burdensome for Defendant Eaton to provide and thus is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). However, any misconduct by Defendant Eaton which occurred more than one year prior to Mr. Wasson's detention at SCDF is not relevant, as Plaintiff must show deliberate indifference on the part of Defendants during the time of Mr. Wasson's incarceration in order to prevail on her constitutional claims. Therefore, Interrogatory 7 shall be limited to the time period beginning one year prior to Mr. Wasson's incarceration at SCDF and ending on the date of his release from SCDF.

         Although Interrogatory 7, as limited above, satisfies the rules of discovery, Defendant Eaton has invoked his privilege under the Fifth Amendment. As discussed above, the Fifth Amendment privilege against self-incrimination protects Defendant Eaton from responding to interrogatories that request information “which would furnish a link in the chain of evidence needed to prosecute” him for potential criminal conduct. Malloy, 378 U.S. at 11. Here, evidence that Defendant Eaton engaged in sexual conduct with inmates would support a potential prosecution against him for the crime of Criminal Sexual Penetration under N.M. Stat. § 30-9-11(E)(2).[1] Therefore, Defendant Eaton shall not be compelled to answer this interrogatory as to all inmates.

         However, Defendant Eaton cannot assert his privilege under the Fifth Amendment as to crimes of which he has already been charged and convicted. Defendant Eaton has been charged with Criminal Sexual Penetration as to victims Bree Oldfield and Tammy Montgomery, and he pled guilty to both charges under North Carolina v. Alford. Doc. 62-3 at 11. “An Alford-type plea is a guilty plea in all material respects[.]” United States v. McMurray, 653 F.3d 367, 385 (6th Cir. 2011). Such a plea has all the same preclusive effects as a guilty plea. See Wirsching v. Colorado, 360 F.3d 1191, 1204-05 (10th Cir. 2004). Therefore, the double jeopardy clause would protect him from further prosecutions based on the conduct involving those victims as charged. See U.S. Const. amend. V; see also North Carolina v. Pearce, 395 U.S. 711 (1969). As Plaintiff cannot be convicted of these acts a second time, he cannot “reasonably believe[]” that information regarding his sexual conduct with these two victims could be used in a criminal prosecution against him. Kastigar, 406 U.S. at 445.

         In his response to the interrogatory, Defendant Eaton stated that he pled guilty to each crime under Alford “without admitting to the criminal act.” Doc. 62-3 at 3. However, this is not responsive to the interrogatory, as Defendant Eaton neither confirmed nor denied having sexual contact with either inmate. Therefore, Defendant Eaton shall provide an amended response as to inmates Bree Oldfield and Tammy Montgomery. As to all other inmates, Defendant Eaton shall either fully respond to Interrogatory 7 or clearly invoke his privilege under the Fifth Amendment.

         (ii) Interrogatory 8

         Plaintiff's Interrogatory 8 provides:

Please list all the employees of SCDF who knew of your sexual contact with inmates at SCDF.

Doc. 62-3 at 3. Defendant Eaton provided the following objections to Interrogatory 8: (1) Fifth Amendment privilege against self-incrimination; (2) relevance; (3) argumentative and improperly assumes facts; (4) purpose is to annoy, embarrass, and harass; (5) information not within Defendant Eaton's personal knowledge; and 6) unlikely to lead to admissible evidence. Id. at 3-4.

         The Court overrules Defendant Eaton's discovery objections, as the information is relevant and the request is proportional to the needs of the case. However, the Court finds that Defendant Eaton is protected from responding to the interrogatory in its entirety, as the information is subject to the Fifth Amendment privilege. It is not difficult to conclude that requiring Defendant Eaton to identify witnesses to such criminal sexual contact would “furnish a link in the chain of evidence needed to prosecute” him for further crimes. Malloy, 406 U.S. at 11. Therefore, Defendant Eaton shall not be compelled to answer this interrogatory.[2]

         (iii) Interrogatories 9 & 10

         Plaintiff's Interrogatory 9 provides:

Please describe your history of drug use. Include in your answer any time which you required treatment for substance abuse, when you received treatment, and where you went for such treatment.

Doc. 62-3 at 4. Defendant Eaton provided the following objections to Interrogatory 9: (1) relevance; (2) argumentative and improperly assumes facts; (3) purpose is to annoy, embarrass, and harass; (4) vague and overbroad; and ...


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