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Chand v. Corizon Medical

United States District Court, D. New Mexico

August 16, 2018

NAREND CHAND, Plaintiff,
v.
CORIZON MEDICAL; DR. MARK WALDEN; and GEO GROUP, INC., Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR ORDER TO LIFT STAY OF PROCEEEDINGS AND ORDERING PARTIES TO MEDIATION

         THIS MATTER comes before the Court upon Plaintiff's Motion for Order to Lift Stay of Proceedings, filed May 31, 2018 (Doc. 47). Having reviewed the parties' briefs and applicable law, I find that Plaintiff's motion is not well-taken and will be denied.

         BACKGROUND

         This case arises out of allegations of sexual misconduct and assault of inmates by Defendant Walden during the time he provided medical care at the Guadalupe County Correctional Facility in Santa Fe, New Mexico (“Correctional Facility”). Plaintiff was an inmate at the Correctional Facility during the time period when the conduct at issue occurred. Plaintiff filed the complaint in the Fourth Judicial District Court, State of New Mexico, County of Guadalupe on October 19, 2015. Defendants removed the case to federal court on October 27, 2015 based on this Plaintiff's assertion of federal civil rights claims.

         The complaint (Doc. 1-1) alleges that Defendant Walden abused his position at the Correctional Facility to sexually abuse at least 25 inmates who were housed there. Plaintiff alleges that Dr. Walden performed ungloved genital examination and rectal examinations without a nurse present and that these examinations were allegedly inappropriate both in methodology and in length. As a result of these repeated procedures, Plaintiff has permanent injuries in his rectal area from the sexual abuse and continues to have pain, sores and loose skin in his rectal area. Compl., ¶¶55-62.

         The Court takes judicial notice of at least seventeen other cases in this District alleging sexual abuse of inmates by Defendant Walden. See D.S. et al. v. The GEO Group et al., 15CV00774 RB-KBM, Doc. 59 at 5, n.2 (Mar. 2, 2017) (listing cases).[1]

         The Court entered a stay in this case on February 11, 2016, anticipating criminal charges being filed against Dr. Walden by the Department of Justice (“DOJ”). Doc. 11. According to quarterly status reports filed with the Court, the DOJ investigation is still ongoing and active. See, e.g., Doc. 42.

         Plaintiff seeks to lift the stay because there is no indication when or if Defendant Walden will be prosecuted and because the applicable statute of limitations would be five years for most of the charges and much longer for others. Plaintiff is also concerned because as time goes by, witness recollection will become stale and ultimately prejudice his case against Defendant Walden. Defendant opposes a lifting of the stay, arguing that his constitutional rights are no less important than those of Plaintiff and that continuing the stay would ensure protection of Dr. Walden's constitutional rights.

         DISCUSSION

         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).

         I. Relevant Factors

         Defendant relies on his constitutional rights to argue that the stay must continue, but the Constitution “does not generally require a stay of civil proceedings pending the outcome of criminal proceedings, absent substantial prejudice to a party's rights.” Creative Consumer, 563 F.3d at 1080 (cited cases omitted). Instead:

[w]hen 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 v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995). 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.

Creative Consumer, 563 F.3d at 1080. In determining whether to issue or continue a stay, courts consider the ...


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