Askew v. USP Leavenworth et al
MEMORANDUM AND ORDER denying 31 Motion for Discovery; granting 32 Motion to Stay Discovery. Signed by Magistrate Judge Kenneth G. Gale on 1/8/21. (df)
Case 5:20-cv-03058-TC-KGG Document 34 Filed 01/08/21 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEON HENDERSON ASKEW
UNITED STATES OF AMERCIA, et al., )
Case No.: 20-3058-TC-KGG
MEMORANDUM & ORDER ON
MOTION FOR DISCOVERY AND MOTOIN TO STAY
Now before the Court are the “Motion for Complete (Full) Discovery” (Doc.
31) filed by Plaintiff and the Motion to Stay Discovery (Doc. 32) filed by
Defendants. Having reviewed the submissions of the parties, Plaintiff’s motion
(Doc. 31) is DENIED without prejudice and Defendants’ motion (Doc. 32) is
GRANTED for the reasons set forth below.
In the present action, Plaintiff, who is representing himself pro se, alleges
violations of his Civil Rights. The facts of this case were summarized by the
District Court in the screening process as follows:
The amended complaint alleges that plaintiff was
sexually assaulted on February 21, 2018 at USPLeavenworth by a person named Gregory in ‘health
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services’ while he was naked and pinned down by four
unnamed correctional officers whom he designates as
‘John Doe # 1-4’. Doc. No. 6, p. 4. Plaintiff further
alleges that he was struck on the head with a blunt object
by John Doe # 1 and repeatedly attacked and punched
while he was on the ground by John Does # 2-4. Id. at
pp. 4-5. The amended complaint also lists the ‘United
States (Judge Wyle Y. Daniels)’ as a defendant. Id. at
p.3. It asserts that the ‘United States placed [plaintiff] in
their custody with Gross Negligence and Negligence …
knowing that I was [falsely] imprisoned after serving
notice of ‘fraud on the court’ in the United States District
Court District of Colorado …’ Id. at p. 2. J. Wilson and
B. Cordell are also listed as defendants in the caption of
the amended complaint. In an exhibit to the amended
complaint (Doc. No. 6-1, pp. 5-7), plaintiff alleges that
Wilson and Cordell failed in an attempt to coverup what
plaintiff describes as ‘attempted murder.’
(Doc. 7, at 1-2.) During its screening procedure, the District Court dismissed
Daniel, Wilson, and Cordell as Defendants. (Id., at 2-3.)
A motion for summary judgment and motion to dismiss for lack of
jurisdiction was filed by Defendants in October 2020. (Doc. 17.) That motion is
currently pending before the District Court.
Defendants now move for an Order staying this litigation until the District
Court issues its order on the dispositive motion. (Doc. 32.) Defendants contend
that a stay is warranted because
Defendant Gregory is entitled to immunity from suit, and
under prevailing Tenth Circuit and Supreme Court
jurisprudence, immunity entitles that party to avoid the
burdens of litigation including discovery. Additionally,
Defendants’ pending motions may conclude the Bivens
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and FTCA litigation, and discovery is not only
unnecessary to resolution of the motions, but also
wasteful and unduly burdensome under the
(Doc. 33, at 1.)
Motion to Stay (Doc. 32).
“The decision to stay discovery and other pretrial proceedings is firmly
vested in the sound discretion of the trial court.” Toney v. Harrod, No. 15-3209EFM-TJJ, 2018 WL 5830398, at *1 (D. Kan. Nov. 7, 2018) (citing Pet Milk Co. v.
Ritter, 323 F.2d 586, 588 (10th Cir. 1963); McCoy v. U.S., No. 07-2097-CM, 2007
WL 2071770, at *2 (D. Kan. July 16, 2007)). That stated, Tenth Circuit has
concluded that “the right to proceed in court should not be denied except under the
most extreme circumstances.” Commodity Futures Trading Comm’n v. Chilcott
Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983). Thus, the District of
Kansas generally does not favor staying discovery pending a ruling on a
dispositive motion. McCoy, 2007 WL 2071770, at *2.
Even so, “a stay pending a ruling on a dispositive motion is appropriate
where the case is likely to be finally concluded as a result of the ruling, where the
facts sought through the remaining discovery would not affect the ruling on the
pending motion, or where discovery on all issues in the case would be wasteful and
burdensome.” Toney, 2018 WL 5830398, at *1. See also Citizens for Objective
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Public Educ. Inc. v. Kansas State Bd. of Educ., No. 13-4119–KHV, 2013 WL
6728323, *1 (D. Kan. Dec.19, 2013); see also Kutilek v. Gannon, 132 F.R.D. 296,
297–98 (D. Kan. 1990). Also, a stay is appropriate when the party requesting it
has filed a dispositive motion asserting absolute or qualified immunity. Id., at *2.
Defendants’ dispositive motion pending before the District Court argues that
Plaintiffs’ Complaint should be dismissed based on Defendants’ qualified and
sovereign immunity. (See generally Docs. 32, 33.)
As stated by the United States Supreme Court in Ashcroft v. Iqbal, a
plaintiff “is not entitled to discovery, cabined or otherwise,” against government
officials raising immunity defenses. 556 U.S. 662, 686, 129 S.Ct. 1937, 1954, 173
L.Ed.2d 868 (2009). It is well established that the immunity defense gives
government officials “a right … to avoid the burdens of ‘such pretrial matters as
discovery … .’” Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 839, 133
L.Ed.2d 773 (1996) (internal citation omitted).
It is well-established that the burdens of litigation have an inherent cost not
only to the officials being sued, but society as a whole. “These social costs include
the expenses of litigation, the diversion of official energy from pressing public
issues, and the deterrence of able citizens from acceptance of public office.”
Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396
(1982). According to Defendants, “the diversion of resources for this case is
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considerable, as Plaintiff’s suit will consume the time and resources of numerous
current and former Federal Bureau of Prisons employees.” (Id.) Further,
Defendants assert that if their dispositive motion is granted, “the case will be
concluded, making discovery moot.” (Id., at 4.)
Courts in this District have generally found “when immunity is asserted by
dispositive motion, a stay of discovery is appropriate pending a ruling on the
immunity issue.” Garrett’s Worldwide Enterprises, LLC, et al. v. U.S., No. 142281-JTM, 2014 WL 7071713, at *1 (D. Kan. Dec. 12, 2014). While limited
circumstances exist in which discovery may be permitted on narrowly tailored
issues after an immunity is raised, the fact remains that “plaintiff bears the burden
of demonstrating ‘how [such] discovery will raise a genuine fact issue as to
defendant’s … immunity claim.’” Martin v. County of Santa Fe, 626 Fed. Appx.
736, 740 (10th Cir. 2015) (in the context of a qualified immunity defense) (quoting
Cole v. Ruidoso Mun. Sch., 43 F. 3d 1373, 1387 (10th Cir. 1994)).
Plaintiff in this case has failed to respond to Defendants’ motion and the
time to do so has expired. D. Kan. Rule 6.1(d)(1). Thus, Plaintiff has not met, let
alone even addressed, this burden.
As such, Defendants’ Motion to Stay (Doc. 33) is GRANTED until the
District Court rules on Defendants’ dispositive motion. In reaching this
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determination, the Court makes no inference or findings as to the potential validity
of Defendants’ sovereign and qualified immunity defenses.
Motion for Discovery (Doc. 33).
Also pending before the Court is Plaintiff’s “Motion for Complete (Full)
Discovery,” in which he lists four categories of information he contends he has
sought from defense counsel, apparently by telephone. (Doc. 33.) The Court notes
that parties “may not seek discovery from any source before the parties have
conferred as required by Rule 26(f) … .” Fed.R.Civ.P. 26(d). There is no
indication that the parties have engaged in their Rule 26(f) conference. No
Scheduling Order has been entered in this case and there has not even been an
initial order setting a Scheduling Conference because of the filing of Defendants’
dispositive motion. As such, the time for discovery in this case has not
commenced pursuant to Fed.R.Civ.P. 26. Further, as discussed above, the Court
has stayed discovery pending the resolution of Defendants’ dispositive motion.
The Court therefore DENIES Plaintiff’s motion without prejudice.
Plaintiff is free to refile this motion, if he deems it necessary, if and when the
discovery period commences in this case following resolution of the dispositive
motion. The parties are reminded that motions relating to discovery must comply
with Fed.R.Civ.P. 37 and D. Kan. Rule 37.1.
Case 5:20-cv-03058-TC-KGG Document 34 Filed 01/08/21 Page 7 of 7
IT IS THEREFORE ORDERED that the Plaintiff’s Motion for Discovery
(Doc. 31) is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Stay (Doc. 32) is
IT IS SO ORDERED.
Dated this 8th day of January, 2021, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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