King et al v. United States of America et al
MEMORANDUM AND ORDER denying 28 Defendants' Motion to Stay Discovery. Plaintiffs are permitted to conduct discovery limited to the threshold issue of qualified immunity and on matters bearing on Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. Signed by Magistrate Judge Teresa J. James on 8/29/2017. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TIMOTHY KING, Special Administrator
of deceased Otis L. Bradley, Jr., et al.,
UNITED STATES OF AMERICA, et al.,
Case No. 16-cv-1435-EFM-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Stay Discovery (ECF No. 28).
In their motion, individual Defendants Kristine Aulepp, Amber McCafferty, Jason Clark, Jason
Troll, Justin Alexander and Claude May, and Defendant United States ask the undersigned
Magistrate Judge to enter a stay of discovery pending the presiding District Judge’s ruling on
their Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 25).
Plaintiffs oppose the requested stay. For the reasons discussed below, the Court denies the
Legal Standard for Motion to Stay Discovery
The decision to stay discovery and other pretrial proceedings is firmly vested in the sound
discretion of the trial court.1 The Tenth Circuit, however, has held that “the right to proceed in
court should not be denied except under the most extreme circumstances.”2 Therefore, as a
general rule, the District of Kansas does not favor staying discovery pending a ruling on a
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).
Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484
(10th Cir. 1983).
dispositive motion.3 A stay is not favored because it can delay a timely resolution of the matter.4
Although, upon a showing of good cause, the court may . . . stay or limit
the scope of discovery to protect a party from annoyance, embarrassment,
oppression or undue burden or expense, bare assertions that discovery will
be unduly burdensome or that it should be stayed because pending
dispositive motions will probably be sustained, are insufficient to justify
the entry of an order staying discovery generally.5
However, 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.6
An stay may also be appropriate when the party requesting it has filed a dispositive
motion asserting absolute or qualified immunity.7 In that instance, a defendant is entitled to have
the question of immunity resolved before being required to engage in discovery and other pretrial
proceedings.8 Qualified immunity “spare[s] a defendant not only unwarranted liability, but
McCoy, 2007 WL 2071770, at *2.
Wolf v. United States, 157 F.R.D 494, 495 (D. Kan. 1994).
Evello Invs. N.V. v. Printed Media Servs., Inc., No. 94-2254-EEO, 1995 WL 135613, at *3 (D.
Kan. Mar. 28, 1995) (quoting Continental Ill. Nat’l Bank & Trust Co. v. Caton, 130 F.R.D. 145,
148 (D. Kan. 1990)).
Randle v. Hopson, No. 12-CV-2497-KHV-DJW, 2013 WL 120145, at *1 (D. Kan. Jan. 9,
2013) (citing Wolf, 157 F.R.D. at 495). Cases in this district frequently refer to these
circumstances as “the Wolf factors.”
E.g., Garrett’s Worldwide Enterprises, LLC v. United States, 2014 WL 7071713, at *1 (D. Kan.
Dec. 12, 2014) (citing cases).
See Siegert v. Gilley, 500 U.S. 226, 232-33 (1991) (until the threshold immunity question is
resolved, discovery and other pretrial proceedings should not be allowed); Workman v. Jordan,
958 F.2d 332, 336 (10th Cir. 1992) (when a defendant asserts qualified immunity, the court
should grant the defendant’s request for a stay of discovery until the immunity issue is resolved).
unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”9
Further, it is “an immunity from suit rather than a mere defense to liability[,] and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.”10 However,
“[q]ualified immunity is not a shield from all discovery.”11 When the issue of immunity is raised
but not yet determined, discovery is limited to “resolving that issue alone.”12
A party seeking a stay of discovery has the burden to clearly show a compelling reason
for the court to issue a stay.13
The Parties’ Arguments
Defendants argue that a stay is appropriate because the individual Defendants have
moved for dismissal or summary judgment of Plaintiffs’ Bivens claims14 based on qualified
immunity. They contend that allowing discovery to go forward would unnecessarily divert the
time and resources of these six current and former Federal Bureau of Prisons employees.
Furthermore, they argue, discovery would be wasteful and unduly burdensome because the
individual Defendants’ qualified immunity defense is capable of fully concluding the Bivens
claim Plaintiff asserts against them.
Siegert, 500 U.S. at 232.
Id. at 233 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Lewis v. City of Ft. Collins, 903 F.2d 752, 754 (10th Cir. 1990) (citing Maxey v. Fulton, 890
F.2d 279, 283 (10th Cir. 1989)).
Lewis, 903 F.2d at 754 (citing Maxey and Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Evello Invs. N.V., 1995 WL 135613, at *3.
Bivens claims are those which seek damages for injuries caused by a constitutional violation
by federal officials. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
Although only one of the four counts in Plaintiffs’ amended complaint has been met with
a defense of qualified immunity, Defendants also seek a stay of discovery for the remaining three
counts which assert claims against the United States and the individual Defendants under the
Federal Tort Claims Act (FTCA). Defendants merely repeat the Wolf factors—the circumstances
in which a stay pending a ruling on a dispositive motion is appropriate—but do not apply them to
this case. Defendants also assert that discovery would not affect the resolution of the dispositive
motions and will not cause Plaintiffs to suffer prejudice.
Plaintiffs detail their need for discovery and the ways in which their efforts to conduct
discovery have been thwarted. They point out that they named John and Jane Doe Defendants in
their Bivens claim because they are unaware of all federal employees who allegedly caused or
contributed to Mr. Bradley’s death in the U.S. Penitentiary Leavenworth. They first sought that
information through a Freedom of Information Act Request (FOIA), which resulted in a partial
release of records. They ultimately filed an administrative claim with the Bureau of Prisons, but
obtained no documents in return. Upon filing this civil action, Plaintiffs filed a motion seeking
limited discovery which would allow them to learn the identities of the Doe Defendants.15 The
Court denied the motion.16 Defendants simultaneously filed their dispositive motion,17 attaching
documents Plaintiffs had not previously seen, and the instant motion. Since this motion has been
pending, Plaintiffs have filed a motion asking the presiding District Judge to defer ruling on
Defendants’ dispositive motion until Plaintiffs are allowed to conduct discovery on the FTCA
ECF No. 3.
ECF No. 21.
ECF No. 25.
claims and on whether the individual Defendants may properly assert qualified immunity.18 That
motion remains pending. Plaintiffs contend they are entitled to conduct discovery to evaluate
whether the individual Defendants are allowed to claim qualified immunity, and that Defendants
have not met their burden on the Wolf factors to demonstrate why discovery should not go
forward on the FTCA claims.
Application of the Standard to This Case
As noted above, absent an assertion of immunity, the great weight of authority in this
District is against granting a stay of discovery and other pretrial proceedings, even when a
dispositive motion is pending. In those instances in which a stay is appropriate, at least one of
the following three factors is present: (1) the case is likely to be finally concluded as a result of
the ruling, (2) the facts sought through the remaining discovery would not affect the ruling on the
pending motion, or (3) discovery on all issues in the case would be wasteful and burdensome.19
Although Defendants seek a stay of all discovery because the individual Defendants
assert qualified immunity, their motion acknowledges that case law permits discovery limited to
determining whether immunity applies. In advance of an order to conduct a Rule 26(f)
conference, Plaintiffs moved to conduct such limited discovery, hoping to obtain information
that would allow them to amend their complaint and name the relevant federal employees who
allegedly caused or contributed to Mr. Bradley’s death.20 The Court denied their motion.21 On
ECF No. 39.
Randle v. Hopson, No. 12-CV-2497-KHV-DJW, 2013 WL 120145, at *1 (D. Kan. Jan. 9,
2013) (citing Wolf v. United States, 157 F.R.D. 494, 495 (D. Kan. 1994)).
Plaintiffs’ Motion to Expedite Discovery (ECF No. 3).
ECF No. 21.
February 6, 2017, before the Court entered its ruling, Plaintiffs filed an amended complaint.22
The United States filed its answer on April 28, 2017,23 and on May 12, 2017 all Defendants filed
a joint motion to dismiss or in the alternative, for summary judgment,24 along with the instant
motion. One month later, Plaintiffs filed a motion asking the presiding District Judge to refrain
from ruling on Defendants’ dispositive motion until Plaintiffs have an opportunity to conduct
discovery to present facts to support their opposition to summary judgment.25 That motion
As this chronology demonstrates, Plaintiffs’ efforts to conduct discovery have
consistently been limited to that necessary to meet an immediate legal challenge. Defendants’
motion, however, seeks to continue to prevent Plaintiffs from conducting all discovery. As such,
it is overbroad. “In some cases, discovery may be necessary to determine whether the
defendants’ challenged conduct violated clearly established law and thus, whether defendants are
entitled to qualified immunity.”27 This is one such case. Plaintiffs are entitled to conduct
discovery directed to whether the individual Defendants’ conduct violated clearly established
ECF No. 8.
ECF No. 24.
ECF No. 25.
ECF No. 39.
This case was reassigned to the undersigned Magistrate Judge on August 16, 2017, and the
instant motion was referred to same two days later.
Lewis, 903 F.2d at 754.
law. The Court denies Defendants’ motion insofar as it precludes Plaintiffs from conducting
discovery on the issue of whether the individual Defendants are entitled to qualified immunity.28
Defendants also request a stay of discovery for Plaintiffs’ FTCA claims against the
United States. In so doing, they acknowledge the standard for obtaining a stay of discovery, i.e.,
(1) whether the case is likely to be finally concluded via a dispositive motion, (2) the facts sought
through discovery would not affect the resolution of a dispositive motion, and (3) discovery on
all issues posed by the complaint would be wasteful and burdensome.29
As to the first factor, Defendants summarily state that if the pending dispositive motions
are granted, the case will be concluded and discovery will be moot. Their argument does not
address the likelihood that the dispositive motions will be granted. As to the second factor,
Defendants contend that any discovery Plaintiffs might conduct would not affect the resolution
of those motions. Plaintiffs vigorously dispute Defendants’ position, as evidenced by their
motion seeking to defer a ruling on Defendants’ dispositive motions until Plaintiffs are permitted
to conduct discovery. Defendants assert that Plaintiffs have all the documents they need, while
Plaintiffs catalog a list of documents they contend are relevant to their claims, none of which
they have been permitted to request in discovery. As Plaintiffs point out, no Rule 26 disclosures
have been made, nor have they received a description of documents that would be identified in
such disclosures. Moreover, it is not Defendants’ province to determine whether Plaintiffs
possess sufficient information to counter a dispositive motion.
The Court’s conclusion is not inconsistent with the denial of Plaintiffs’ Motion to Expedite
Discovery (ECF No. 21), which was ruled on the basis of the “reasonableness” or “good cause”
test that applies to requests to expedite discovery under Fed. R. Civ. P. 26(d).
ECF No. 29 at 4-5 (citing Clinton v. Jones, 520 U.S. 681, 706 (1997)).
Defendants address the third factor by stating that discovery on the FTCA claim would
subject the individual Defendants to respond to discovery requests and participate in depositions
before the issue of qualified immunity is resolved. Plaintiffs disagree that the individual
Defendants would be burdened, as the written discovery they propose seeks comprehensive
records maintained by the facility and the agency. They contend that none of their proposed
requests would interfere with the individual Defendants’ daily work as medical providers. And
in response to Defendants’ conclusory statement that a stay of discovery would not cause
prejudice to Plaintiffs, Plaintiffs candidly acknowledge they cannot specifically point to what
prejudice they would suffer because they cannot speak about what they do not know. They do
know, however, that they are unable to controvert the evidence Defendants have put forth
The Court finds Defendants have not met the factors necessary to obtain a stay of
discovery relative to the FTCA claims. Plaintiffs are entitled to conduct discovery regarding
facts which may result in them amending their Bivens claims to add or modify allegations and/or
add parties Moreover, in a case in which Plaintiffs have been provided no initial disclosures but
have only been met with documents submitted against them as part of a dispositive motion, the
Court is cognizant that “[a] court abuses its discretion when it stays discovery and prevents a
party from having a sufficient opportunity to develop a factual basis for defending against the
[dispositive] motion.”30 This is not a case in which the discovery that would be halted is
unrelated to the pending dispositive motion. Indeed, the opposite is true.
Defendants have not clearly shown a compelling reason for the court to issue a stay of all
Wolf, 157 F.R.D. at 494.
IT IS THEREFORE ORDERED that Defendants’ Motion to Stay Discovery (ECF No.
28) is DENIED. Plaintiffs are permitted to conduct discovery limited to the threshold issue of
qualified immunity and on matters bearing on Defendants’ Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment.
Dated in Kansas City, Kansas on this 29th day of August, 2017.
s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge
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