United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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).
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.”
Fifth Amendment Privilege
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).
[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
United States v. Nipper, 210 F.Supp.2d 1259, 1261
(N.D. Okla. 2002).
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.
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)
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.
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
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). Therefore, Defendant Eaton shall not be
compelled to answer this interrogatory as to all inmates.
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.
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
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.
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.
Interrogatories 9 & 10
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
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