Smith v. East et al

Filing 34

MEMORANDUM OPINION AND ORDER that defendant's 18 MOTION to Strike is GRANTED; that plaintiff's 25 MOTION to Open Discovery is DENIED. Signed by Hon. Chief Judge Mark E. Fuller on 5/29/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNTIED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S T E V E N SMITH, P la in tif f , v. O F F IC E R EAST, D e f e n d a n t. ) ) ) ) ) ) ) ) )

CASE NO. 2:09-cv-193-MEF

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on Defendant's Motion to Strike (Doc. # 18) filed o n April 21, 2009. In his motion, the named defendant, Officer East ("East") moves to s trik e the fictitious defendant described in the Amended Complaint as "Officer A." In re s p o n s e , Plaintiff filed a Motion to Open Discovery (Doc. #25) on April 25, 2009 so that h e could ascertain Officer A's identity. Also before the Court is Defendant's Motion to D is m iss (Doc. #15) filed on April 21, 2009, in which East contends that he is entitled to q u a lif ie d immunity from Plaintiff's claims. In this Memorandum Opinion and Order, the C o u rt will discuss Plaintiff's Motion to Open Discovery and Defendant's Motion to S trik e . P la in tif f 's Motion to Open Discovery In federal courts, qualified immunity is "an immunity from suit rather than a mere d e f e n s e to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in o rig in a l). The purpose of immunity is to "avoid subject[ing] government officials either

to the costs of trial or to the burdens of broad-reaching discovery." Id. The Eleventh C irc u it has also recognized the importance of preventing discovery in cases where a d e f e n d a n t asserts qualified immunity. See Cottone v. Jenne, 326 F.3d 1352, 1357 (11th C ir. 2003) (stating that a defendant pleading qualified immunity is entitled to a stayed d is c o v e ry until resolution of the defense). In his motion, Plaintiff asks the Court for leave to conduct limited discovery to d e te rm in e the identity of Officer A. Plaintiff acknowledges that fictitious party pleading is not allowed in federal court but argues that "Plaintiff has precisely described Officer A w ith all but his/her name and that name may be easily ascertained through limited d is c o v e ry." (Doc. # 28, pg. 3). East contends that Plaintiff's motion is unsupported by E le v e n th Circuit case law, which does not allow discovery until resolution of the d e f e n d a n t's qualified immunity defense. The Court agrees that Plaintiff may not conduct d is c o v e ry even for the limited purpose of discovering Officer A's identity because East h a s asserted a qualified immunity defense. Consequently, he is entitled to a ruling on that a s s e rtio n of immunity from suit prior to having to participate in discovery in this case. Therefore, Plaintiff's Motion to Open Discovery (Doc. # 25) is due to be DENIED. D e f e n d a n t's Motion to Strike In Defendant's Motion to Strike, East moves to strike the fictitious defendant d e s c rib e d in the Amended Complaint as "Officer A." There is no fictitious party practice in federal courts. See, e.g., Fed. R. Civ. P. 10(a); New v. Sports & Recreation, Inc., 114 F .3 d 1092, 1094 n.1 (11th Cir. 1997); Harris v. Palm Harbor Homes, Inc., 198 F. Supp.

2d 1303, 1304 n.6 (M.D. Ala. 2002); Edwards v. Alabama Dep't of Corr., 81 F. Supp. 2d 1 2 4 2 , 1257 (M.D. Ala. 2000). Therefore, Defendant's Motion to Strike (Doc. #18) is due to be GRANTED. C o n c lu s io n It is hereby ORDERED that Defendant's Motion to Strike (Doc. # 18) is GRANTED and P la in tif f Motion to Open Discovery (Doc. #25) is DENIED. D O N E this the 29th day of May, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE