Spence v. Cabiling
ORDER granting 33 Defendants Motion to Stay Discovery. Discovery is temporarily stayed pending resolution of Defendants Motion to Dismiss. The parties shall file a status report within three business days of receiving a ruling on the Motion to Dismiss, indicating what changes in the Scheduling Order are needed. by Magistrate Judge Michael E. Hegarty on 10/24/2011.(erv, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01027-CMA-MEH
PAUL W. SPENCE,
LOUIS CABILING, MD, DOC,
ORDER ON DEFENDANT’S MOTION TO STAY DISCOVERY
Before the Court is Defendant’s Motion to Stay Discovery [filed October 17, 2011; docket
#33]. The Motion has been referred to this Court for disposition. (Docket #34.) Oral argument
would not materially assist the Court in its adjudication. Based on a clear right to relief as
established by the Supreme Court and described herein, the Court decides the Motion without
reviewing a response from Plaintiff. For the reasons set forth below, the Court GRANTS
Defendant’s Motion to Stay Discovery.
Plaintiff brings this lawsuit under 42 U.S.C. §1983 as a pro se litigant incarcerated in the
Colorado Department of Corrections. Plaintiff’s initial complaint, filed April 18, 2011, named
Corrections Corporation of America (“CCA”), Dr. Louis Cabiling, M.D., DOC, and Aristedes
Zavaras, as defendants. (Docket #1.) In an order issued on April 29, 2011, Magistrate Judge Boland
directed Plaintiff to file an amended complaint describing in greater detail the personal participation
of CCA and Zavaras. (Docket #7.) In light of Plaintiff’s failure to timely file an amended
complaint, Judge Babcock dismissed defendants CCA and Zavaras, leaving Dr. Cabling as the only
remaining defendant. (See docket #12.) Due to a misunderstanding regarding whether Plaintiff’s
amended complaint was accepted as filed, Defendant filed a motion to stay [docket #22] and a
motion to dismiss [docket #19] which pertained to the non-operative amended complaint. On
September 15, 2011, this Court denied Defendant’s motions without prejudice and directed Plaintiff
to file a second amended complaint, which Plaintiff filed on September 30, 2011. (See docket #30.)
Construing Plaintiff’s Second Amended Complaint liberally, Plaintiff alleges that Defendant
acted with deliberate indifference in failing to properly treat and diagnose injuries to Plaintiff’s left
knee and hip. (See docket #31.) Plaintiff asserts that Defendant’s alleged malpractice violated his
Eighth and Fourteenth Amendment rights under the United States Constitution. (Id. at 4-6.)
Plaintiff requests declaratory and injunctive relief, in addition to compensatory and punitive
damages. (Id. at 8.)
Defendant filed a Motion to Dismiss the Second Amended Complaint on October 17 , 2011.
(Docket #32.) Defendant contends that Plaintiff’s Eighth and Fourteenth Amendment claims are
not cognizable, that Plaintiff’s claims are barred by the statute of limitations, and that he is entitled
to sovereign immunity under the Eleventh Amendment and qualified immunity. (Id. at 3-12.)
Defendant also filed the present Motion to Stay Discovery, asserting that discovery in this matter
should be stayed because the Motion to Dismiss is based in part on qualified immunity. (Docket
The Supreme Court established that evaluating the defense of qualified immunity is a
threshold issue, and “[u]ntil this threshold immunity question is resolved, discovery should not be
allowed.” Siegert v. Gilley, 500 U.S. 226, 233 (1991) (citing Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992) (same); see also Behrens v.
Pelletier, 516 U.S. 299, 308 & 310 (1996) (noting that discovery can be particularly disruptive when
a dispositive motion regarding immunity is pending). Here, Defendant raises qualified immunity
as a defense in the pending Motion to Dismiss.
A stay of all discovery is generally disfavored in this District. Chavez v. Young Am. Ins. Co.,
No. 06-cv-02519-PSF-BNB, 2007 WL 683973, at *2 (D. Colo. Mar. 2, 2007). However, in
evaluating a request for a stay of discovery, the following five factors guide the Court’s
(1) plaintiff's interests in proceeding expeditiously with the civil action and the
potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the
convenience to the court; (4) the interests of persons not parties to the civil litigation;
and (5) the public interest.
String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-1934, 2006 WL 894955 at *2 (D. Colo.
Mar. 30, 2006); see also Golden Quality Ice Cream Co. v. Deerfield Speciality Papers, Inc., 87
F.R.D. 53, 56 (E.D. Pa. 1980).
In weighing the factors set forth for determining the propriety of a stay, the Court finds that
a temporary stay is appropriate here, pending adjudication of the Motion to Dismiss. See String
Cheese, 2006 WL 894955, at *2. First, with respect to the first and second factors, there can be no
doubt that Plaintiff has an interest in proceeding expeditiously, but his interest is offset by
Defendant’s burden. In light of the Supreme Court’s instruction regarding qualified immunity, the
Court finds that the potential harm to Plaintiff is outweighed by the burden on Defendant resulting
from conducting and responding to discovery.
The remaining String Cheese factors (i.e., the Court's efficiency and interests of nonparties
and the public in general) do not prompt a different result. See String Cheese, 2006 WL 894955,
at *2. Considering judicial efficiency and economy and the burden of discovery, the Court finds a
temporary stay to be appropriate at this stage of the litigation. Moreover, the Court must follow
Supreme Court precedent regarding staying discovery until resolution of the immunity question.
Thus, the Court will grant Defendant’s Motion to Stay.
Accordingly, for the reasons stated above, it is hereby ORDERED that Defendant’s Motion
to Stay Discovery [filed October 17, 2011; docket #33] is granted. Discovery is temporarily stayed
pending resolution of Defendant’s Motion to Dismiss. The parties shall file a status report within
three business days of receiving a ruling on the Motion to Dismiss, indicating what changes in the
Scheduling Order are needed.
Entered and dated at Denver, Colorado, this 24th day of October, 2011.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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