King et al v. United States of America et al
MEMORANDUM AND ORDER denying 3 Motion to Expedite. See Order for details. Signed by Magistrate Judge Gerald L. Rushfelt on 4/3/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
OTIS L. BRADLEY, JR., Deceased, by and
Through TIMOTHY KING, Special
Administrator, and LaTASHA BRADLEY, Heir
Case No. 16-1435-EFM-GLR
UNITED STATES OF AMERICA, DR.
KRISTINE AULEPP, AMBER
MCCAFFERTY, DR. JASON CLARK, JASON
TROLL, JUSTIN ALEXANDER, CLAUDE
MAYE, JANE DOE & JOHN DOE,
MEMORANDUM AND ORDER
Otis L. Bradley, Jr., by and through Timothy King, the special administrator of his estate,
and LaTasha Bradley, Mr. Bradley’s wife and heir, bring this action against the United States of
America, Dr. Kristine Aulepp, Amber McCafferty, Dr. Jason Clark, Jason Troll, Justin
Alexander, Claude Maye, and two Jane and John Doe Defendants following the death of Mr.
Bradley, a former inmate at the United States Penitentiary at Leavenworth, Kansas (“USP
Leavenworth”). Plaintiffs assert the following claims in their Amended Complaint (ECF 8): (1)
Bivens claim for violations of rights under the United States Constitution; (2) wrongful death
pursuant to the Federal Tort Claims Act (“FTCA”); (3) survival claim for personal injuries
pursuant to the FTCA; and (4) breach of duty to provide reasonable care pursuant to the FTCA.
This matter comes before the Court on Plaintiffs’ Motion to Expedite Discovery (ECF 3). The
motion is fully briefed and the Court is prepared to rule. For the reasons stated below, the Court
denies Plaintiffs’ motion.
The following factual allegations are taken from Plaintiffs’ Amended Complaint. Mr.
Bradley was incarcerated at USP Leavenworth from mid-2014 until early 2015, pursuant to his
conviction as a felon in possession of a firearm. Defendant Dr. Kristine Aulepp performed an
initial health screening on Mr. Bradley on May 21, 2014, which showed no signs of illness or
disease. David Campbell, ARNP, completed Mr. Bradley’s physical on June 3, 2014, which also
showed no chronic health issues. Mr. Bradley was placed in solitary confinement, or “SHU,” in
early December 2014, following an altercation with a corrections officer. On December 15,
2014, Mr. Bradley collapsed in his cell. He was transferred to St. Luke’s Cushing Hospital in
Leavenworth, Kansas, where he presented with abdominal pain, facial and hand numbness,
drooling, and eye twitching. Mr. Bradley had abnormal lab results. Dr. Chrstopher Warholic
noted: “Discuss with jail medical need for further evaluation such as neurology evaluation or
possible need for holter monitor.” Mr. Bradley was transported back to USP Leavenworth on
December 16, 2014. In a follow-up appointment Dr. Aulepp noted “no further intervention
needed.” Mr. Bradley’s physical condition continued to deteriorate throughout December 2014,
with no further evaluation or intervention by Dr. Aulepp or any other USP Leavenworth medical
personnel or corrections workers. Additionally, from December 2014 through January 11, 2015,
Mr. Bradley had contact with Defendants McCafferty, Dr. Clark, Troll, Alexander, and Maye.
Plaintiffs allege these Defendants did nothing to address his medical condition observed during
the December 2014 hospitalization.
Mr. Bradley continued to experience medical issues in early January 2015. He reported
to the prison medical clinic on January 11, 2015, exhibiting blood in his vomit and extreme pain
in his abdomen. He was again transported to St. Luke’s Cushing Hospital that same day. As of
January 11, 2015, Mr. Bradley had been ill for nearly a month. He had lost 20 pounds in the past
month, had not had a bowel movement for more than a week, and had been nauseous for many
days. He was diagnosed with gallstones, pancreatitis, and diabetes.
On January 12, 2015, Mr. Bradley was transferred to St. Luke’s Hospital in Kansas City,
Missouri, where he remained until his death from pancreatitis on February 6, 2015. Mr.
Bradley’s family was notified on February 4, 2015, that he was on life support and they needed
to come to St. Luke’s Hospital to “make decisions.” Until this time, Mr. Bradley’s family had no
knowledge that he was ill. Plaintiffs allege Defendants did not provide Mr. Bradley with
reasonable or competent care until he was repeatedly vomiting blood on January 11, 2015.
Following his death, Mr. Bradley’s estate was opened on May 20, 2015. Medical records
were requested from the treating hospital immediately following the opening of the estate, but
the hospital did not provide these records to counsel for more than three months. Plaintiffs’
counsel filed a Freedom of Information Act (“FOIA”) request on August 24, 2015, attempting to
obtain prison records relevant to the investigation into Mr. Bradley’s death. Counsel for the
Federal Bureau of Prisons (“BOP”) responded that the request was “complicated” and could take
up to nine months to process. Plaintiffs contend that their counsel called and asked that the
request be expedited, while Defendants assert that Plaintiffs’ counsel did not request that the
FOIA request be expedited.1
The BOP responded to Plaintiffs’ FOIA request on December 9, 2015, by providing
responsive records. Included in these records were 299 pages of documents released in full and
eighteen pages released with some redactions. The BOP withheld 29 pages of documents in their
ECF 6 at 3; ECF 12 at 3.
entirety. The BOP maintains that only documents containing protected third-party information
were redacted, and that Plaintiffs’ counsel received the majority of documents related to Mr.
Bradley, including his Inmate Central File, his Medical File, and his Psychology File. Plaintiffs
maintain that while some of these documents were helpful, Plaintiffs had already received many
of them from St. Luke’s Hospital, and others did not specifically address the issues involved in
On May 12, 2016, Plaintiffs’ counsel filed an administrative demand under the FTCA,
and served the demand on the BOP. The 180-day deadline for the BOP to investigate the claim
expired on November 22, 2016 without any documents being provided to Plaintiffs or Plaintiffs’
counsel as part of the investigation into the demand.
Plaintiffs filed this lawsuit on December 15, 2016. In an effort to proceed with their
Bivens claim and identify potential defendants relevant to this claim, Plaintiffs served BOP
counsel with a series of interrogatories and requests for production. Plaintiffs’ discovery
requests sought information regarding corrections officers, medical staff, and other employees
who interacted with Mr. Bradley, information concerning inmates located in cell blocks near Mr.
Bradley, information regarding USP Leavenworth medical clinic staff, and documents related to
Mr. Bradley’s medical requests, treatments, and interactions with USP Leavenworth correctional
workers and medical personnel.2 Defendants did not respond to Plaintiffs’ discovery requests.
Plaintiffs filed the instant motion on December 28, 2016.
On February 6, 2017, Plaintiffs filed an Amended Complaint. Using information from
the documents produced in response to the FOIA request, Plaintiffs added five Defendants to this
ECF 3-1; ECF 3-2.
Plaintiffs move the Court for an order to expedite discovery of the requested information,
as discussed above. Generally, “[a] party may not seek discovery from any source before the
parties have conferred as required by [Federal Rule of Civil Procedure] 26(f), except in a
proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these
rules, by stipulation, or by court order.”3 This is not a proceeding exempted from initial
disclosure and the parties have not stipulated to early discovery. Additionally, the parties have
not participated in a Rule 26(f) conference. Thus, any early or expedited discovery is permitted
only by order of this Court.
This Court has previously recognized two factor tests that guide the determination of
whether to permit expedited discovery. The first, and more stringent, standard requires the
plaintiff to demonstrate
(1) irreparable injury; (2) some probability of success on the merits; (3) some
connection between the expedited discovery and the avoidance of the
irreparable injury; and (4) some evidence that the injury that will result
without expedited discovery looms greater than the injury that the defendant
will suffer if the expedited relief is granted.4
The second, more liberal analysis—typically referred to as the “reasonableness” or “good cause”
test—looks to the following factors to determine the reasonableness of expedited discovery: “(1)
whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the
purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with
the requests; and (5) how far in advance of the typical discovery process the request was made.”5
Fed. R. Civ. P. 26(d).
Sunflower Elec. Power Plant Corp. v. Sebelius, No. 08-2575-EFM-DWB, 2009 WL 774340, at *2 (D.
Kan. Mar. 20, 2009) (quoting Disability Rights Council of Greater Washington v. Washinton Metro. Area Transit
Auth., 234 F.R.D. 4, 6 (D.D.C. 2006)).
Id. (quoting Disability Rights Council, 234 F.R.D. at 6).
The Court in the District of Kansas has recently applied the reasonableness or good cause test,
and this Court will use that test.6
The Court finds that the reasonableness factors above do not favor early discovery. First,
no motion for preliminary injunction is pending, and Plaintiffs do not seek expedited discovery
in relation to requesting emergency relief. Rather, Plaintiffs seek expedited discovery to allow
them to further amend their complaint to add potential Bivens defendants. Second, while
Plaintiffs’ discovery requests are not unduly broad, they are also not narrowly tailored to the
purpose of identifying additional Bivens defendants. Plaintiffs seek information related to other
nearby inmates, “every document” in USP Leavenworth’s “prisoner database” that pertains to
Mr. Bradley, and “every request for medical treatment” that Mr. Bradley submitted while at USP
Leavenworth.7 These and other requests go beyond mere identification of additional defendants.
They instead venture into the merits of this case.
Third, as explained above, Plaintiffs’ stated purpose in seeking early discovery is to
amend their Amended Complaint to add potential Bivens defendants. Plaintiffs previously filed
their Amended Complaint, using information obtained through their FOIA request to name five
additional Defendants. As they explain in their reply, “Plaintiffs added those federal employees
who were medical providers who observed and failed to treat Mr. Bradley in the final weeks of
his incarceration at Leavenworth.”8 Thus, Plaintiffs have had success in using informal, prelawsuit investigative strategies to name otherwise unidentified Defendants. Many of the
documents and much of the information Plaintiffs seek in their discovery requests go to
information that appears to have been provided in response to the FOIA request. Plaintiffs seek
Id. at 3; SC Realty v. MTC Cleaning, Inc., No. 15-2315, 2015 WL 11089660 (D. Kan. Feb. 19, 2015)
(applying reasonableness test).
ECF 3-1; ECF 3-2.
ECF 12 at 6.
“all documents from Leavenworth’s records for the time period in December 2014 through
January 2015 when Mr. Bradley was in ‘SHU’ and twice transferred to hospitals outside of the
Defendant’s facility due to severe and ultimately fatal medical illness.”9 But Plaintiffs state that
they have already included in their Amended Complaint “those federal employees who were
medical providers and failed to treat Mr. Bradley” during this time period. Additionally, to the
extent the early discovery would supposedly reveal additional Bivens Defendants, beyond those
already named in the Amended Complaint, Plaintiffs do not elaborate on why it is necessary at
this time to specifically name those defendants.10 Because much of the information Plaintiffs
seek was apparently produced in response to the FOIA requests, Plaintiffs have successfully used
that information to amend their Complaint, and Plaintiffs have not provided a rationale for the
urgency in naming additional Defendants, the Court finds that the purpose of the request is not a
compelling reason for opening discovery in advance of the normal process.
Fourth, Defendants argue that responding to the discovery requests would be
burdensome. Defendants note that Plaintiffs seek responses to their discovery requests within
fourteen days of being served with the requests, which represents a faster turnaround than the
typical 30 days provided for in the Federal Rules of Civil Procedure.11 Additionally, Defendants
assert that no protective order is in place, and that responding to the requests would entail
searches of many records and databases, as well as review of the documents for privilege and
privacy issues. Plaintiffs do not question that responding would be burdensome, but instead
suggest that Defendants have known since July 2015 that Plaintiffs seek the information at issue.
ECF 12 at 7. As explained above, the discovery requests are broader than the time period from December
2014 through January 2015.
See Sunflower Elec., 2009 WL 774340, at *4 (“while Sunflower also urges that it needs this discovery to
evaluate a possible amendment to its complaint or motion for preliminary injunction, it does not expound on why
this is necessary at this time.”).
Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. P. 34(b)(2)(A).
The Court credits Defendants’ assertion that responding to the discovery requests would impose
a significant burden, especially in light of the requested fourteen-day response window. This
burden weighs in favor of proceeding with discovery as more commonly contemplated by the
Finally, the Court recognizes that Plaintiffs made their request for expedited discovery
significantly in advance of the typical discovery process. Indeed, Plaintiffs filed their motion
just thirteen days after they filed their Complaint, but were later able to amend their Complaint
by adding Bivens Defendants without resorting to expedited discovery.12
The Court finds that the factors discussed above weigh in favor of adhering to the typical
discovery process. There is no motion for preliminary injunction pending. Plaintiffs do not seek
emergency relief. Additionally, the stated purpose of the request for expedited discovery—
naming additional defendants—is not particularly compelling, given that Plaintiffs have already
amended their Complaint to add Bivens Defendants. The discovery requests are broad. The
burden in responding to them at this early stage would be unnecessarily great. Finally, Plaintiffs
filed their motion almost immediately after initiating this action, well in advance of the normal
discovery process and before they were able to successfully file an Amended Complaint without
the use of expedited discovery. For these reasons the Court finds no need for expedited
discovery, and in any event any need for it is outweighed by the considerations discussed above.
Accordingly, the Court denies Plaintiffs’ motion for expedited discovery.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion to Expedite
Discovery (ECF 3) is denied.
Dated: April 3, 2017
s/Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge
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