McCauley v. Sierra County Board of County Commissioners et al
Filing
83
ORDER by Magistrate Judge Gregory B. Wormuth granting in part and denying in part 62 Motion to Compel. (twr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CINDY MCCAULEY,
As Next Friend of NATHAN WASSON,
Plaintiff,
v.
SIERRA COUNTY BOARD
OF COUNTY COMMISSIONERS, et al.,
Defendants.
Civ. No. 16‐1046 MV/GBW
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
TO COMPEL
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
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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.
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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).
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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
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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)
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
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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
Under N.M. Stat. § 30‐1‐8, a six‐year statute of limitations applies to this crime. As Mr. Wasson began
his detention at SCDF in October 2012, the statute of limitations has not yet run as to any acts constituting
Criminal Sexual Penetration which occurred during Mr. Wasson’s incarceration.
1
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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
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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,
Plaintiff may obtain known witnesses to the crimes of which Defendant Eaton was convicted by
obtaining the relevant criminal investigation files, rather than through interrogatories.
2
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embarrass, and harass; (4) vague and overbroad; and (5) unlikely to lead to admissible
evidence. Id.
Plaintiff’s Interrogatory 10 provides:
Please list all the employees of SCDF who knew you were
using drugs while employed at SCDF.
Doc. 62‐3 at 5. Defendant Eaton provided the following objections to Interrogatory 10:
(1) relevance; (2) argumentative and improperly assumes facts; (3) purpose is to annoy,
embarrass, and harass; (4) information not within personal knowledge; (5) unlikely to
lead to admissible evidence; and (6) not limited in time and scope.3 Id.
The Court will compel Defendant Eaton to respond to Interrogatories 9 and 10,
except that Defendant Eaton shall not be required to respond as to his personal, lawful
use of prescription or non‐prescription drugs. Defendant Eaton shall respond to these
interrogatories, however, as to all illegal drug use as well as improper prescription drug
use (e.g., use by someone to whom the drug is not prescribed). Further, Interrogatories
9 and 10 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.
(iv)
Interrogatories 13, 15, and 16
Plaintiff’s Interrogatory 13 provides:
Please describe your opinion of the conditions of
confinement Nathan Wasson was subjected to at SCDF.
Defendant Eaton failed to invoke his Fifth Amendment privilege as to Interrogatories 9 and 10.
Therefore, the Court will not address whether the privilege is applicable here.
3
10
Doc. 62‐4 at 1. Defendant Eaton provided the following objections to Interrogatory 13:
(1) seeks lay opinions not within common knowledge; (2) seeks legal conclusions and
opinions; (3) unlikely to lead to admissible evidence; and (4) vague. Id.
Notwithstanding those objections, Defendant Eaton provided the following response:
I am not a medical expert, but to my knowledge, Nathan
Wasson was treated similarly to other inmates in the North
Wing of the Sierra County Detention Facility. To my
knowledge, Nathan Wasson received the care he was
entitled to, and he did not receive any more or any less
favorable treatment than other inmates.
Id.
Plaintiff’s Interrogatory 15 provides:
Did you notice if Nathan Wasson’s mental or physical health
needed attention during his stay at SCDF in 2012, 2013, and
2014? Please explain how and why.
Doc. 62‐4 at 2. Defendant Eaton provided the following objections to Interrogatory 15:
(1) seeks lay opinions not within common knowledge; (2) seeks legal conclusions and
opinions; and (3) vague. Id. Notwithstanding those objections, Defendant Eaton
provided the following response:
I am not a medical expert, but to my knowledge, I did not
notice any medical emergencies or other obvious conditions
with regard to Nathan Wasson. I do not recall Nathan
Wasson’s condition deteriorating, at least from my
perspective as a Detention Sergeant. I do know that mental
health services were provided to inmates, but I believe that
you would need to consult with medical or mental health
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providers regarding Nathan Wasson’s physical or mental
condition, except as I already stated above.
Id. at 3.
Plaintiff’s Interrogatory 16 provides:
In your opinion, did Nathan Wasson’s mental or physical
health deteriorate during his stay? Please explain how and
why.
Doc. 62‐4 at 3. Defendant Eaton provided the following objections to Interrogatory 16:
(1) seeks lay opinions not within common knowledge; (2) seeks legal conclusions and
opinions; (3) unlikely to lead to admissible evidence; and (4) vague. Id.
Notwithstanding those objections, Defendant Eaton provided a response that is
identical to his response to Plaintiff’s Interrogatory 15, as quoted above.
The Court overrules Defendant Eaton’s objections, as the information requested
in Interrogatories 13, 15, and 16 is relevant and the requests are proportional to the
needs of the case. However, the Court will not compel Defendant Eaton to amend or
supplement his responses, as the responses already provided are fully responsive to
Interrogatories 13, 15 and 16. Nonetheless, Defendant Eaton shall reaffirm that his
previous answers remain his answers now that his objections have been overruled.
(v) Interrogatory 17
Plaintiff’s Interrogatory 17 provides:
Please describe each time you have been interviewed by law
enforcement in relation to your activities in SCDF. Please
include the nature of the conversation, what you believed
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the investigation was about, and the approximate date and
location it took place. Include the names of the people who
took part in the conversation, and the agencies involved.
(You may restrict your answer to occasions where you were
the possible target of the investigation.)
Doc. 62‐3 at 6. Defendant Eaton provided the following objections to Interrogatory 17:
(1) relevance; (2) argumentative and improperly assumes facts; and (3) purpose is to
annoy, embarrass, and harass. Id. Notwithstanding those objections, Defendant Eaton
provided the following response:
I was interviewed in approximately February 2014, in
conjunction with the raid on the facility and removal of the
Warden. I believe Sheriff’s Deputies Joshua Baker and RD
Hayes were present. The interview took place in the
Detention Center conference room. I am not sure whether or
not I was the target of the investigation.
I was interviewed on approximately June 23, 2014 by T or C
Police Detectives James Harrington and George Lee, due to
the criminal investigations made against me with regard to
the cases to which I pleaded guilty pursuant to North
Carolina v. Alford, as already stated. The interview took place
at the T or C Police Department.
Id.
The Court overrules Defendant Eaton’s objections, except that Interrogatory 17
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. To the extent
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that the response already provided is fully responsive to Interrogatory 17, Defendant
Eaton should affirmatively state so in his supplemental discovery responses.
(vi)
Interrogatory 18
Plaintiff’s Interrogatory 18 provides:
Please describe on each occasion you had possession of
illegal drugs or prescription medications in SCDF. This
question does not seek information about you dispensing
medications to inmates in a lawful manner.
Doc. 62‐3 at 6‐7. Defendant Eaton provided the following objections to Interrogatory 18:
(1) relevance; (2) argumentative and improperly assumes facts; (3) purpose is to annoy,
embarrass, and harass; (4) information not within personal knowledge; (5) unlikely to
lead to admissible evidence; (6) vague and overbroad; and (7) not limited in time and
scope.4 Id. at 7.
The Court overrules Defendant Eaton’s objections, except that Interrogatory 18
shall be modified to state as follows:
Please describe each occasion on which you had possession
of illegal drugs or prescription medications in SCDF if such
possession violated the regulations of SCDF. This question
does not seek information about you dispensing medications
to inmates in a lawful manner.
Defendant Eaton failed to invoke his Fifth Amendment privilege as to Interrogatory 18. Therefore, the
Court will not address whether the privilege is applicable here.
4
14
(vii)
Interrogatory 19
Plaintiff’s Interrogatory 19 provides:
Please indicate each time you have destroyed, fabricated or
altered medical records or jail paperwork. Please include all
occasions where you have been accused, suspected or
alleged to have engaged in such conduct.
Doc. 62‐5 at 1. Defendant Eaton provided the following objections to Interrogatory 17:
(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 personal knowledge; (6) unlikely to lead to
admissible evidence; and (7) vague and overbroad. Id. at 1‐2.
The Court overrules all objections with the exception of the assertion of Fifth
Amendment privilege. The Court finds that the information is relevant5 and that the
burden of producing such information is proportional to its importance. However,
evidence that Defendant Eaton destroyed, fabricated, or altered medical records or jail
paperwork would support a potential prosecution against him for the crimes of
Tampering with Public Records and Tampering with Evidence under N.M. Stat. §§ 30‐
26‐1 and 30‐22‐5.6 In an amended response, Defendant Eaton shall either fully respond
5
The Court notes that, if the information sought by this interrogatory were not subject to the privilege
against self‐incrimination, the Court would limit it 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.
6 Under N.M. Stat. § 30‐1‐8, a five‐year statute of limitations could apply to these crimes. As noted in the
previous footnote, the relevant information sought by this interrogatory would reach back to October
2011. The statute of limitation would permit prosecution for such conduct as far back as August 2012.
While conduct between October 2011 and August 2012 would not itself be actionable, compelling
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to Interrogatory 19 or clearly invoke his privilege against self‐incrimination under the
Fifth Amendment.
(viii)
Requests for Admission 1, 2, 3, 4, & 5
Plaintiff’s Request for Admission 1 provides:
Admit you have given inmates medications that were not
prescribed to them.
Doc. 62‐6 at 1. Defendant Eaton provided the following objections to Request for
Admission 1: (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 personal knowledge; and (6) vague with respect to
the term “medications.” Id.
Plaintiff’s Request for Admission 2 provides:
Admit you have brought illegal drugs into SCDF.
Doc. 62‐6 at 1. Defendant Eaton provided the following objections to Request for
Admission 2: (1) Fifth Amendment privilege against self‐incrimination; (2) relevance; (3)
argumentative and improperly assumes facts; and (4) purpose is to annoy, embarrass,
and harass. Id.
Defendant Eaton to confess to criminal conduct during that period could furnish a link to evidence of
later criminal conduct which could be prosecuted. Consequently, the Court will uphold Defendant
Eaton’s claim of privilege even for such conduct between October 2011 and August 2012.
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Plaintiff’s Request for Admission 3 provides:
Admit that you have used illegal drugs while in the SCDF.
Doc. 62‐6 at 2. Defendant Eaton provided the following objections to Request for
Admission 3: (1) relevance; (2) argumentative and improperly assumes facts; (3)
purpose is to annoy, embarrass, and harass; (4) vague and ambiguous; and (5) not
limited in time or scope. Id.
Plaintiff’s Request for Admission 4 provides:
Admit you have performed sexual acts while in SCDF.
Doc. 62‐6 at 2. Defendant Eaton provided the following objections to Request for
Admission 4: (1) Fifth Amendment privilege against self‐incrimination; (2) relevance; (3)
argumentative and improperly assumes facts; and (4) purpose is to annoy, embarrass,
and harass. 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 No. 2.
Expressly subject to North Carolina v. Alford and the specific
charges to which I pleaded guilty, admit.
However, with regard to any other inmate, I invoke the Fifth
Amendment to the United States Constitution and decline to
respond on that basis, in addition to any other objections
made by my counsel.
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Id. at 2‐3.
Plaintiff’s Request for Admission 5 provides:
Admit you have performed sexual acts with inmates while
in SCDF.
Doc. 62‐6 at 3. Defendant Eaton provided the following objections to Request for
Admission 5: (1) Fifth Amendment privilege against self‐incrimination; (2) relevance; (3)
argumentative and improperly assumes facts; and (4) purpose is to annoy, embarrass,
and harass. Id. Notwithstanding those objections, Defendant Eaton provided a
response that is identical to his response to Plaintiff’s Request for Admission 4, as
quoted above. See id.
The Court overrules all of Defendant Eaton’s objections with the exception of the
invocation of his Fifth Amendment privilege against self‐incrimination. The Court
finds that the information is relevant and that the burden of producing such
information is proportional to its importance. As discussed above, 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). Evidence that Defendant Eaton gave inmates medications that were not
prescribed to them would support a potential prosecution against him for the crimes of
Trafficking Controlled Substances and Distributing Controlled or Counterfeit
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Substances under N.M. Stat. §§ 30‐31‐20 and 30‐31‐22.7 Defendant Eaton shall either
admit or deny Requests for Admission 1, 2, 3, 4, and 5 or provide amended responses
which clearly invoke his privilege under the Fifth Amendment.
However, as discussed above, the Court finds that Defendant Eaton cannot assert
his privilege under the Fifth Amendment as to crimes of which he has already been
charged and convicted. Therefore, Defendant Eaton shall respond to Requests for
Admission 4 and 5 as to Bree Oldfield and Tammy Montgomery.
(ix) Request for Admission 6
Plaintiff’s Request for Admission 6 provides:
Admit you have brought an unauthorized deadly weapon
(e.g. a knife or gun) into SCDF.
Doc. 62‐6 at 4. Defendant Eaton provided the following objections to Request for
Admission 6: (1) relevance; (2) argumentative and improperly assumes facts; and (3)
purpose is to annoy, embarrass, and harass. Id. The Court finds that the information
requested is irrelevant to the claims and defenses in this case and will therefore DENY
the Motion to Compel as to Request for Admission 6.
(x) Request for Admission 7
Plaintiff’s Request for Admission 7 provides:
7
Under N.M. Stat. § 30‐1‐8, either a five‐year or six‐year statute of limitations could apply to these crimes,
depending on the degree of felony charged. As Mr. Wasson began his detention at SCDF in October 2012,
the statute of limitations has not yet run as to any acts constituting Trafficking Controlled Substances or
Distributing Controlled or Counterfeit Substances which occurred during Mr. Wasson’s incarceration.
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Admit you have used illegal drugs in the last five years.
Doc. 62‐6 at 4. Defendant Eaton provided the following objections to Request for
Admission 7: (1) relevance; (2) argumentative and improperly assumes facts; (3)
purpose is to annoy, embarrass, and harass; and (4) not properly limited in time or
scope. Id. The Court overrules Defendant Eaton’s discovery objections, as the
information is relevant and the request is proportional to the needs of the case.8
(xi) Requests for Admission 8 & 9
Plaintiff’s Request for Admission 8 provides:
Admit you have witnessed inmates in SCDF without proper
medical care.
Doc. 62‐7 at 1. Defendant Eaton provided the following objections to Request for
Admission 8: (1) seeks lay opinions not within common knowledge; (2) seeks legal
conclusions and opinions; (3) unlikely to lead to admissible evidence; and (4) vague. Id.
Without waiving the foregoing objections, Defendant Eaton stated that he denied the
fact at issue. Id.
Plaintiff’s Request for Admission 9 provides:
Admit to your knowledge there was no legitimate reason for
Mr. Wasson to be housed in segregation.
Doc. 62‐7 at 1. Defendant Eaton provided the following objections to Request for
Admission 9: (1) improper suggestion that Defendant Eaton had oversight over inmate
Defendant Eaton failed to invoke his Fifth Amendment privilege as to Request for Admission 7.
Therefore, the Court will not address whether the privilege is applicable here.
8
20
classification responsibilities during Plaintiff’s detention, and (2) seeks information not
within personal knowledge. Id. Without waiving the foregoing objections, Defendant
Eaton stated that he denied the fact at issue. Id.
The Court overrules Defendant Eaton’s discovery objections as to Requests for
Admission 8 and 9, as the information is relevant and the request is proportional to the
needs of the case. However, the Court will not compel Defendant Eaton to provide any
further responses, as he has already denied Requests for Admission 8 and 9.
Nonetheless, Defendant Eaton shall reaffirm that his previous answers remain his
answers now that his objections have been overruled.
IV.
COSTS AND FEES
Having ruled on each disputed discovery response, the next question is whether
costs and fees should be awarded. Upon resolution of motions to compel, the “losing”
party must be required to pay the reasonable expenses incurred in making or opposing
the motion. See Fed. R. Civ. P. 37(a)(5). However, this payment shall not be required if
(i) the prevailing party failed to make a good faith effort to obtain the disclosure
without court action; (ii) the “losing” party’s grounds were “substantially justified” or
(iii) the “circumstances make an award of expenses unjust.” Id. Moreover, if, as here,
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the “motion is granted in part and denied in part, the court . . .may . . . apportion the
reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). 9
In this motion, the Court has rejected the vast majority of Defendant Eaton’s
objections which were not based upon privilege. However, some of those objections
were still substantially justified. While some were not, there were several disputes on
which further meet‐and‐confers by Plaintiff’s counsel should have been attempted.
Finally, the Court broadly agreed with Defendant Eaton on his privilege‐based
objections. Under these circumstances, the Court will not impose costs or fees to either
side.
CONCLUSION
V.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Plaintiff’s Motion to Compel (doc. 62). Defendant Eaton shall submit supplemental
responses as detailed above.
IT IS SO ORDERED.
____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
9
Of course, in any event, the party must be given an opportunity to be heard as well. This requirement is
met where, as here, the opposing party seeks sanctions in its briefing and the sanctioned party has an
opportunity to respond thereafter. See, e.g., McCoo v. Denny’s Inc., 192 F.R.D. 675, 697 (D. Kan. 2000).
22
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