United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR ORDER TO LIFT STAY OF PROCEEEDINGS AND ORDERING
PARTIES TO MEDIATION
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.
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.
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.
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)
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.
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.
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
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