Echols v. Lawton

Filing 38

ORDER denying 36 Motion for Discovery. Signed by Magistrate Judge G. R. Smith on 2/19/14. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DOUGLAS ECHOLS,

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Plaintiff,

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I!!

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SPENCER LAWTON, in his
individual capacity,

Case No. CV408-023

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Defendant.

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ORDER
Before the Court is plaintiff Douglas Echols' de bene esse motion to
preserve deposition testimony.' Doe. 36. Defendant Spencer Lawton
opposes. Doe. 37.
I. BACKGROUND2
Echols was convicted for rape and kidnapping. Doe. 26 (Amended
Complaint) at 1-6. Exonerating DNA evidence led the convicting court to
grant him a new trial, and ultimately the indictment against him was
"'De bene esse' means 'provisionally' and refers to the right to use the deposition in
the event of the absence of the witness at the time of the trial." 26B C.J.S.
DEPOSITIONS § 9 (Dec. 2013); see also id. ("the purpose of depositions de bene esse is
to perpetuate testimony against the contingency of its loss before the occasion arises
for its use.").
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For the purpose of this Order, the Court is accepting plaintiffs allegations as true.

dismissed. Id. at 5. He suffered devastating personal, financial, and
career losses in the meantime. Id. at 5-6.
A Georgia legislator introduced "House Resolution No. 96" to
compensate Echols with $1,600,000.00. Doe. 26 at 6. "On consideration
of House Resolution No. 96 and Plaintiffs Notice of Claim, the Georgia
Claims Advisory Board twice unanimously determined that [he] should
be compensated for his losses following from his wrongful imprisonment
for the crimes of rape and kidnapping which he did not commit and the
Board twice recommended that Plaintiff Douglas Echols be compensated
in an amount to be determined by the legislature of the State of
Georgia." Id. at 7.
Lawton, however, responded to that by sending a letter to state
Senator Jack Hill, then emailed other members of the Georgia
Legislature. Doe. 26 at 7. His communications "contained false
information and offered intentionally misleading legal advice and
statements, which Defendant Lawton knew would be accepted as sound."

Id. at 7. He "claimed that [Echols'] conviction and imprisonment for the
crimes of rape and kidnapping were proper and fitting, even though
Plaintiffs conviction had been vacated and a new trial had been

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granted."

Id. at 8. He even insisted, falsely, that Echols "remained

'under indictment' for rape and kidnapping."

Id. at 8 (emphasis

original). These and other false representations scuttled the
compensation effort. Id. at 8-11.
Echols then sued Lawton in his individual capacity under 42 U.S.C.
§ 1983. Doc. 26 at 11. Lawton, he alleges, denied him "his constitutional
rights to substantive and procedural due process, which rights are
fundamental and guaranteed by the Fifth, Sixth and Fourteenth
Amendments to the Constitution of the United States of America, and
which rights were clearly established by law, at the time Defendant
Lawton sent the correspondence." Id. He also raises other claims. Id. at
11-14.
Lawton moves to dismiss and stay discovery. Docs. 23, 28 & 29.
Echols, he argues, has "failed to state a valid claim based upon the
deprivation of either substantive or procedural due process, and his
Amended Complaint should be dismissed." Doc. 29-2 at 12. He also
raises prosecutorial and qualified immunity, among other defenses.

Id.

at 15-21. Because Lawton's two stay motions are intertwined with the
dismissal motion, they have not been referred to the undersigned. In

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contrast, plaintiffs "preserve testimony" motion has been referred.
Doc. 36.
II. ANALYSIS
Douglas Echols wants to depose Billy Echols, despite the pending
dismissal/stay motions, because he is suffering from Stage Four Diabetes
and his health is in rapid decline. Id. at 3. But plaintiff fails to say what
he expects Billy to testify about, much less who he is (a relative?).
Opposing, Lawton illuminates those points and reiterates his
prosecutorial and qualified immunity defenses, reminding that a core
purpose of qualified immunity is to insulate against discovery expenses.'
Doc. 37.
It is not necessary to reach the immunity defenses' because Echols
doesn't even hint at what the deposition will cover, much less who Billy

See, e.g., Carter v. DeKaib County, Ga., 521 F. App'x 725, 728 (11th Cir. 2013)
(plaintiff was not entitled to opportunity to conduct discovery to uncover actions that
each police officer took on day that plaintiff was taken to county police department's
headquarters for questioning after his wife was found dead, prior to dismissal on
grounds of qualified immunity of his § 1983 claims against those officers for violating
his constitutional rights and committing various Georgia-law torts, in absence of any
showing that officers violated plaintiffs clearly-established statutory or constitutional
rights).
Of some note, however, is Fields v. Wharrie, - F.3d -, 2014 WL 243245 at * 2
(7th Cir. Jan. 23, 2014) (prosecutor did not have absolute or qualified immunity for
his pre-prosecution fabrication of evidence as an investigator, and his later
introduction of the fabricated evidence at trial, in § 1983 procedural due process

Echols is in relation to him. So while he invokes this Court's discretion,

Chrysler Intl Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002);
Charles v. Wade, 665 F.2d 661, 663-64 (5th Cir. 1982); Dopson-Troutt v.
Novartis Pharm. Corp. 2013 WL 5231413 at * 1-2 (M.D. Fla. Sept. 16,
2013), that cannot be exercised absent that critical information.
III. CONCLUSION
Echols' de bene esse motion (doc. 36) is DENIED without prejudice
to renew it in a motion that ultimately must stay with the district judge,
given its intertwinement with the merits of the pending dismissal
motion. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th
Cir. 1997) ("A motion to dismiss based on failure to state a claim for
relief should

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be resolved before discovery begins."); Rutman Wine Co.

v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.1987) (the idea that

discovery should be permitted before deciding a motion to dismiss "is
unsupported and defies common sense [because tjhe purpose of F.R. Civ.
P. 12(b)(6) is to enable defendants to challenge the legal sufficiency of
complaints without subjecting themselves to discovery"); Carter, 521 F.
App'x at 728.
claim brought by former prisoner who was wrongfully convicted of murder); id. at * 6
(same result on plaintiffs state-law claim).

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SO ORDERED this

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721

day of February, 2014.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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