Brown v. Dunn et al
OPINION AND ORDER: it is ORDERED that plf Jennifer Brown's renewed motion for leave to conduct expedited discovery (Doc. 19 ) is denied. Signed by Honorable Judge Myron H. Thompson on 10/4/2021. (cwl, )
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 1 of 11
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
Administratrix for the
Estate of Larry Brown,
JEFFERSON S. DUNN, Alabama )
CIVIL ACTION NO.
OPINION AND ORDER
Jennifer Brown’s renewed motion for leave to conduct
The motion will be denied.
decedent Larry Brown, brought claims against defendants
Jefferson Dunn, Patricia Jones, and David Lamar under
roles in the decedent’s death while incarcerated at the
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 2 of 11
discovery, pursuant to Federal Rules of Civil Procedure
See Pl.’s Mot. for Leave
26(d)(1) and 30(a)(2)(iii).
to Conduct Expedited Discovery (Doc. 10).
Brown now renews her motion for leave to
conduct expedited discovery and requests that the court
(1) permit her to depose ten identified inmates at the
witnesses to the alleged attack or attacks on decedent;
and (3) permit her to depose further witnesses who may
become known to her based on the materials provided by
See Pl.’s Renewed Mot. for Leave to
1. In her first motion, administrator Brown
requested leave to depose defendants Jones and Lamar.
While her renewed motion repeats a paragraph about the
need for Jones and Lamar’s testimony, see Pl.’s Renewed
Mot. for Leave to Conduct Expedited Discovery (Doc. 19)
at 2, she has titled her motion “Plaintiff’s Renewed
Motion for Leave to Conduct Expedited Discovery of
Incarcerated Eye-Witnesses,” and her request for relief
omits Jones and Lamar.
See Pl.’s Renewed Mot. for
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 3 of 11
Conduct Expedited Discovery (Doc. 19).
have filed motions to dismiss on the basis of qualified
immunity, among other grounds.
Federal Rule of Civil Procedure 26(d)(1) states the
general rule that, “A party may not seek discovery from
required by Rule 26(f), except ... when authorized by
these rules, by stipulation, or by court order.”
R. Civ. P. 26(d)(1).
Administrator Brown moves for a
court order authorizing expedited discovery.
the Eleventh Circuit Court of Appeals “has not adopted
a standard for allowing expedited discovery, ... many
confronted with expedited discovery requests.”
v. Parker, No. 1:20-CV-03210-SCJ, 2020 WL 8258735, at
Leave to Conduct Expedited Discovery (Doc. 19) at 4.
Consequently, the court concludes that the paragraph
related to Jones and Lamar was included accidentally
and that Brown has not renewed her request to depose
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 4 of 11
*3 (N.D. Ga. 2020) (Jones, J.).
Under this standard,
burden of showing the existence of good cause, and that
the need for the discovery outweighs any prejudice to
In re Chiquita Brands Int’l,
Inc., No. 08-01916-MD-MARRA, 2015 WL 12601043, at *3
established by showing ‘some impelling urgency which
necessitates action forthwith and excuses giving notice
deposition is taken forthwith.’”
GE Seaco Servs., Ltd.
v. Interline Connection, N.V., No. 09-23864-CIV, 2010
WL 1027408, at *1 (S.D. Fla. 2010) (Seitz, J.) (quoting
K.J. Schwartzbaum, Inc. v. Evans, Inc., 279 F. Supp.
422, 423–24 (S.D.N.Y. 1968) (MacMahon, J.)).
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 5 of 11
When a defendant has asserted an
immunity defense, “[t]he court starts from the general
premise that ‘until the threshold immunity question is
resolved, discovery should not be allowed.’”
Ala. Dep’t of Youth Servs., 209 F.R.D. 493, 495 (M.D.
Fitzgerald, 457 U.S. 800, 818 (1982)); see also Howe v.
City of Enterprise, 861 F.3d 1300, 1302 (11th Cir.
2017) (per curiam) (“[I]mmunity is a right not to be
immunity is asserted.”).
Although “[d]istrict judges
are accorded wide discretion in ruling upon discovery
motions,” Harris v. Chapman, 97 F.3d 499, 506 (11th
discretion in a way that protects the substance of the
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A defendant’s entitlement to avoid the burden of
defendant has asserted immunity in a motion to dismiss
that challenges the legal sufficiency of the complaint.
(“Unless the plaintiff’s allegations state a claim of
pleading qualified immunity is entitled to dismissal
before the commencement of discovery.”); see also Cook
v. Taylor, No. 2:18-CV-977-WKW, 2019 WL 1233853, at *2
motion also asserts an immunity defense”).
When such a
discovery is limited because such challenges present
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“no issues of fact,” as “the allegations contained in
the pleading are presumed to be true.”
administrator Brown cites primarily to cases in which a
court concluded that limited discovery was appropriate
in order for the court to rule on a qualified-immunity
defense asserted in a motion for summary judgment,
rather than a motion to dismiss. See Crawford-El, 523
U.S. at 593 n.14 (recognizing that “limited discovery
may sometimes be necessary before the district court
can resolve a motion for summary judgment based on
These cases do not support
Brown’s request for expedited discovery prior to
resolution of the defendants’ motions to dismiss.
In one case, Bowen v. Humphrey, No. 5:13-CV-256
(MTT), 2014 WL 2565579 (M.D. Ga. 2014) (Treadwell, J.),
a district court ordered “limited discovery” prior to
resolution of a motion to dismiss on the ground of
In that case, the plaintiff
administrator of the estate of an inmate who was killed
by his cellmate brought § 1983 claims against prison
employees, who moved for dismissal on the ground of
qualified immunity and failure to state a claim.
Concluding that there was a “missing link” in the
deliberate indifference,” the court ordered limited
discovery prior to resolution of the motion to dismiss
“for equitable reasons,” because “the Plaintiff’s
access to this final link of evidence ha[d] been
hampered by the fact that [the decedent was] deceased.”
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 8 of 11
To the extent the court has discretion to order
discovery while a motion to dismiss on the basis of
qualified immunity is pending, administrator Brown has
not demonstrated a need for the requested discovery at
this time that justifies ordering expedited discovery
before the Rule 26(f) conference and in the face of the
defendants’ assertions of immunity.
As noted earlier,
Brown seeks three categories of discovery at this time:
discovery stemming from the first two categories.
to the inmate depositions, she argues that good cause
heightened risk of loss or impairment of the testimony
of the inmates she requests leave to depose.
Renewed Mot. for Leave to Conduct Expedited Discovery
Id. at *1–2.
In the instant case, Brown does not argue
that discovery is required to correct any defects in
her pleadings, so the concerns raised in Bowen are
inapposite to her pending motion.
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 9 of 11
(Doc. 19) at 2–4.
According to her, these inmates, who
reportedly are eyewitnesses with firsthand information
regarding the circumstances of the death of decedent,
are incarcerated at the Bullock Correctional Facility,
where they are exposed “to the constant and continuous
danger of ... serious physical and mental injury and/or
See Pl.’s Renewed Mot. for Leave to
loss of life.”
Administrator Brown does not explicitly identify the
basis for her request for expedited discovery of any
In light of her request for
sought from the defendants, the court understands all
of her requests to be grounded in the risk of loss of
However, as stated previously, the requested
discovery would have limited value to disposition of
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 10 of 11
assertion that violence against inmates at the Bullock
Correctional Facility jeopardizes the testimony of the
defendants to the burdens of discovery at this early
Had Brown shown a particularized, substantial risk
of the future unavailability of a key witness--such as
an inmate with a terminal illness, or perhaps, more
germanely to this case, an inmate receiving specific
death threats in prison--a deposition of that inmate
might be allowable, even in the face of a motion to
basis of a generalized danger to all inmate witnesses.
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 11 of 11
That is simply not permissible under the law as it
* * *
Accordingly, it is ORDERED that plaintiff Jennifer
Brown’s renewed motion for leave to conduct expedited
discovery (Doc. 19) is denied.
DONE, this the 4th day of October, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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