Brown v. Dunn et al
Filing
59
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
JENNIFER BROWN,
Administratrix for the
Estate of Larry Brown,
deceased,
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
JEFFERSON S. DUNN, Alabama )
Prison Commissioner;
)
et al.,
)
)
Defendants.
)
CIVIL ACTION NO.
2:21cv440-MHT
(WO)
OPINION AND ORDER
This
case
comes
before
the
court
on
plaintiff
Jennifer Brown’s renewed motion for leave to conduct
expedited discovery.
Brown,
as
the
The motion will be denied.
administrator
of
the
estate
of
decedent Larry Brown, brought claims against defendants
Jefferson Dunn, Patricia Jones, and David Lamar under
42
U.S.C.
§ 1983
and
Alabama
law
for
their
alleged
roles in the decedent’s death while incarcerated at the
Bullock
Correctional
Facility.
Administrator
Brown
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 2 of 11
brought
a
motion
for
leave
to
conduct
expedited
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).
was denied.
That motion
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
Correctional
Facility;
produce
investigation
their
any
possession,
(2)
order
the
information
including
any
defendants
or
reports
reports
to
in
identifying
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
the defendants.1
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
2
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 3 of 11
Conduct Expedited Discovery (Doc. 19).
The defendants
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
any
source
before
the
parties
have
conferred
as
required by Rule 26(f), except ... when authorized by
these rules, by stipulation, or by court order.”
R. Civ. P. 26(d)(1).
Fed.
Administrator Brown moves for a
court order authorizing expedited discovery.
Although
the Eleventh Circuit Court of Appeals “has not adopted
a standard for allowing expedited discovery, ... many
district
expressly
courts
used
within
a
the
general
Eleventh
good
cause
Circuit
have
standard
when
confronted with expedited discovery requests.”
Rivera
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
those defendants.
3
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 4 of 11
*3 (N.D. Ga. 2020) (Jones, J.).
“the
party
requesting
Under this standard,
expedited
discovery
has
the
burden of showing the existence of good cause, and that
the need for the discovery outweighs any prejudice to
the
opposing
In re Chiquita Brands Int’l,
party.”
Inc., No. 08-01916-MD-MARRA, 2015 WL 12601043, at *3
(S.D.
Fla.
2015)
(Marra,
J.).
“Good
cause
may
be
established by showing ‘some impelling urgency which
necessitates action forthwith and excuses giving notice
to
the
desired
other
party,’
testimony
is
such
in
as
‘a
hazard
deposition is taken forthwith.’”
showing
of
the
unless
loss
that
the
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.)).
Resolution
expedited
defendants’
of
administrator
discovery
motions
must
to
take
dismiss
4
Brown’s
into
on
motion
account
the
basis
for
the
of
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 5 of 11
qualified immunity.
When a defendant has asserted an
immunity defense, “[t]he court starts from the general
premise that ‘until the threshold immunity question is
K.M. v.
resolved, discovery should not be allowed.’”
Ala. Dep’t of Youth Servs., 209 F.R.D. 493, 495 (M.D.
Ala.
2002)
(Thompson,
J.)
Harlow
(quoting
v.
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
subjected
to
litigation
immunity is asserted.”).
beyond
the
point
at
which
Although “[d]istrict judges
are accorded wide discretion in ruling upon discovery
motions,” Harris v. Chapman, 97 F.3d 499, 506 (11th
Cir.
1996),
“the
trial
court
must
exercise
its
discretion in a way that protects the substance of the
qualified
immunity
discretion
unnecessary
so
that
and
defense.
officials
burdensome
5
It
are
must
not
discovery
exercise
subjected
or
its
to
trial
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 6 of 11
Crawford-El
proceedings,”
v.
Britton,
523
U.S.
574,
597–98 (1998).
A defendant’s entitlement to avoid the burden of
discovery
is
particularly
substantial
where
the
defendant has asserted immunity in a motion to dismiss
that challenges the legal sufficiency of the complaint.
See
Mitchell
v.
Forsyth,
472
U.S.
511,
526
(1985)
(“Unless the plaintiff’s allegations state a claim of
violation
of
clearly
established
law,
a
defendant
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
(M.D.
Ala.
court
should
pending
2019)
not
motion
sufficiency
of
(Watkins,
allow
to
the
J.)
(observing
discovery
dismiss
complaint
that
—
in
the
is
pending,
the
of
the
especially
plaintiff’s
“the
face
tests
motion also asserts an immunity defense”).
motion
that
legal
when
a
that
When such a
need
for
the
discovery is limited because such challenges present
6
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 7 of 11
“no issues of fact,” as “the allegations contained in
the pleading are presumed to be true.”
Mazda
Motor
Corp.,
123
F.3d
1353,
1367
Chudasama v.
(11th
Cir.
1997).2
2.
As
support
for
her
discovery
request,
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
qualified immunity”).
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
qualified immunity.
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
plaintiff’s
“otherwise
sufficient
allegations
of
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.”
7
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:
depositions
of
information
and
inmate
reports,
witnesses,
and
other,
investigation
as
yet
unknown,
discovery stemming from the first two categories.
As
to the inmate depositions, she argues that good cause
exists
to
grant
expedited
discovery
because
of
the
heightened risk of loss or impairment of the testimony
of the inmates she requests leave to depose.
See Pl.’s
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.
8
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.”
Conduct
Expedited
Discovery
(Doc.
19)
at
4.
Administrator Brown does not explicitly identify the
basis for her request for expedited discovery of any
investigation
information
defendants’ possession.
leave
to
depose
known
to
her
and
in
the
In light of her request for
additional
through
reports
witnesses
depositions
or
who
may
become
the
information
sought from the defendants, the court understands all
of her requests to be grounded in the risk of loss of
testimony
of
incarcerated
witnesses,
both
known
and
unknown.
However, as stated previously, the requested
discovery would have limited value to disposition of
9
Case 2:21-cv-00440-MHT-KFP Document 59 Filed 10/04/21 Page 10 of 11
the
motions
to
dismiss,
and
Brown’s
generalized
assertion that violence against inmates at the Bullock
Correctional Facility jeopardizes the testimony of the
witnesses
she
information
establish
seeks
specific
an
urgency
to
to
depose--without
these
that
further
witnesses--fails
justifies
subjecting
to
the
defendants to the burdens of discovery at this early
stage
of
proceedings,
especially
in
the
face
of
a
qualified-immunity defense.
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
dismiss
however,
on
the
basis
of
qualified
Brown
seeks
wide-ranging
immunity.
discovery
Here,
on
the
basis of a generalized danger to all inmate witnesses.
10
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
stands.
* * *
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
11
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