Carlisle v. Normand, et al

Filing 334

ORDER AND REASONS the Motions to Stay Discovery filed by Klees and the Sheriff 316 , 322 are GRANTED. Discovery is hereby stayed pending resolution of the Motions to Dismiss (Rec. Docs. 307, 308, 309). Signed by Magistrate Judge Janis van Meerveld on 7/19/2018. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
* CIVIL ACTION NO. 16-3767
*
* SECTION: “H”(1)
VERSUS
*
* JUDGE JANE TRICHE MILAZZO
NEWELL NORMAND, ET AL.
*
* MAGISTRATE JUDGE
* JANIS VAN MEERVELD
************************************ *
ORDER AND REASONS
TAYLOR CARLISLE, ET AL.

Before the Court are the Motions to Stay Discovery filed by Patricia Klees and Sheriff
Joseph Lopinto, in his official capacity as Sheriff for the Parish of Jefferson (the “Sheriff”). (Rec.
Docs. 316, 322). For the followings reasons, the Motions are GRANTED. Discovery is hereby
stayed pending resolution of the Motions to Dismiss (Rec. Docs. 307, 308, 309).
Background
Plaintiffs Taylor Carlisle and Emile Heron were convicted of the possession of various
controlled substances and, as a part of their sentences, enrolled in the Drug Court Program of the
24th Judicial District Court (“Drug Court Program”). The remaining claims in this lawsuit include
Plaintiffs’ putative class action claims against the Sheriff1 and Klees under 42 U.S.C. § 1983
challenging the imposition of jail time for alleged probation violations while participating in the
Drug Court Program. Plaintiffs’ proposed class includes those probationers participating in the
Drug Court Program who were sentenced to “flat time,” or who were sentenced to jail time without
a hearing or opportunity to defend, or without a record from which to appeal. Additionally,
Plaintiffs have a state law claim for legal malpractice pending against Joseph Merino, and plaintiff

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Plaintiffs’ Complaint names Newell Normand, who was the Jefferson Parish Sheriff at the time suit was filed.
Pursuant to Federal Rule of Civil Procedure 25(d), an officer’s successor is automatically substituted as a party.

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Carlisle has a negligence claim against Joe McNair and McNair & McNair, LLC, arising out
counseling services provided through the Drug Court Program.
On January 19, 2017, the District Judge granted Plaintiffs 60 days following the Court’s
rulings on the Motions to Dismiss to seek discovery relevant to their class action claim. (Rec. Doc.
108). Those rulings were issued on December 19, 2017. (Rec. Doc. 231). On February 19, 2018,
Plaintiffs sought an extension of the deadline in light of issues that had arisen in obtaining
discovery. The District Judge referred the issue of setting a new deadline for class certification
discovery to the undersigned. The parties have participated in seven telephone status conferences
and one oral argument with the undersigned on discovery related issues.
On May 25, 2018, Officer Klees and the Sheriff filed motions to dismiss. Klees argues she
is immune from suit under principals of sovereign immunity, absolute immunity, and qualified
immunity. She also alleges that Plaintiffs’ class claims against her must be dismissed because
Plaintiffs have not shown common issues of law and fact among the class. In a separate motion to
dismiss, she argues that Plaintiffs’ claims are prescribed because Klees was not added to the suit
until June 13, 2017, more than one year after the conduct Plaintiffs challenge. The Sheriff argues
that Plaintiffs’ claims are barred by Heck v. Humphrey because they are challenging their
incarceration, but their convictions have not been invalidated. The Sheriff also argues that
Plaintiffs have failed to state a claim because the Sheriff has no authority to alter or amend a
sentence imposed by a Judge. Plaintiffs requested and obtained a continuance of the submission
date on the Motions to Dismiss, which are now set for submission on July 25, 2018.
Plaintiffs were proceeding with class certification discovery, but Klees and the Sheriff
refused to appear for deposition in light of their motions to dismiss. On June 29, 2018, Klees filed

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a Motion to Stay Discovery pending resolution of her Motions to Dismiss. The Sheriff filed a
Motion to Stay Discovery or, Alternatively for a Protective Order, on July 5, 2018.
Law and Analysis
1. Delay of Discovery
Rule 26(c) provides that the Court “may, for good cause,” protect a party from “undue
burden or expense” by issuing an order “forbidding the disclosure or discovery” or “specifying
terms, including time . . . for the disclosure or discovery.” Fed. R. Civ. Proc. 26(c)(1)(D). Thus,
the “Court may issue a protective order to stay discovery pending the disposition of a motion to
dismiss and or motion for summary judgment when the party seeking such protection proves its
necessity.” Whitener v. PLIVA, Inc., No. CIV.A. 10-1552, 2013 WL 6086005, at *3 (E.D. La.
Nov. 19, 2013). “A trial court has broad discretion and inherent power to stay discovery until
preliminary questions that may dispose of the case are determined.” Petrus v. Bowen, 833 F.2d
581, 583 (5th Cir. 1987).
2. Officer Klees’ Motion to Stay
Officer Klees insists that all pre-trial discovery regarding Klees should be stayed pending
the District Judge’s ruling on her motions to dismiss and a final determination of her claims for
absolute and/or qualified immunity. She points out that qualified immunity is an immunity from
suit, rather than a mere defense to liability. See Crawford-El v. Britton, 523 U.S. 574, 597–98
(1998). Indeed, where a defendant pleads qualified immunity, “a district court must first find that
the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified
immunity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (quotation omitted). “After the
district court finds a plaintiff has so pled, if the court remains unable to rule on the immunity
defense without further clarification of the facts, it may issue a discovery order narrowly tailored

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to uncover only those facts needed to rule on the immunity claim.” Id. (quotation omitted). The
court of appeals explained that “[o]ne of the most salient benefits of qualified immunity is
protection from pretrial discovery, which is costly, time-consuming, and intrusive.” Id.
In opposing Officer Klees’ motion, Plaintiffs do not argue that discovery from Klees is
necessary to proceed with class certification discovery. Nor do Plaintiffs argue that they must be
allowed to proceed with class discovery, despite the pending motions to dismiss that, if successful,
would result in dismissal of Plaintiffs claims.
Plaintiffs argue that Klees will not be able to establish that sovereign immunity, absolute
immunity, or qualified immunity protect her from suit. Plaintiffs also argue generically that
discovery is required to resolve Klees’ qualified immunity defense. Nonetheless, Plaintiffs cite
numerous examples of records they say support their position that Klees intentionally violated the
law and is therefore ineligible for qualified immunity. Indeed, pages 9 through 17 of their brief is
devoted to the facts and law supporting this position. Importantly, they do not identify any specific
discovery they need in order to contest the motion to dismiss. In fact, Plaintiffs urge the Court to
review their opposition to the Motion to Dismiss to determine whether good cause exists to stay
discovery pending a ruling on Klees’ Motion to Dismiss. That pleading identifies only one area of
discovery purportedly needed on the qualified immunity issue: the contents of conversations
between Klees and others with the Judge on August 25, 2015, when Plaintiffs say the Judge was
misinformed as to the circumstances surrounding Klees’ arrest of Carlisle that same day. However,
it is far from apparent that the Plaintiffs believe this discovery is necessary in order to defeat Klees’
qualified immunity defense.

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Plaintiffs also argue that Klees’ prescription claim is without merit because the allegations
against Klees in the Second Amending and Supplementing Complaint relate back to the date of
filing of the original complaint. Plaintiffs do not address Klees’ brief argument in her motion to
dismiss that Plaintiffs have failed to state a claim that would support a class action against her.
Regardless, Plaintiffs do not argue any discovery is necessary to oppose Klees’ prescription
defense.
The only discovery proceeding at this time is class certification discovery, which was
ordered by the District Judge. As noted, Plaintiffs have not explained why the testimony of Klees
is necessary to class certification discovery. At this time, it does not appear Plaintiffs are even
pressing to proceed with class certification discovery. The Court finds it would be inefficient to do
so now in light of the pending Motions to Dismiss. Further, to the extent the District Court
determines that limited discovery should be opened for the purposes of defeating Klees’ qualified
immunity defense, the District Court will address this issue in resolving the Motion to Dismiss.
Accordingly the Court finds that a stay of discovery as to Klees pending resolution of the Motions
to Dismiss is appropriate at this time.
3. The Sheriff’s Motion to Stay
The Sheriff joins in and adopts the Motion to Stay filed by Klees. He argues that he is
entitled to a stay pending resolution of his motion to dismiss because he insists that “no amount of
discovery can lead to relevant, admissible evidence that can aid Plaintiffs in prosecuting their
claims against the Sheriff.” The Sheriff points out he has been subject to voluminous document
discovery. The Court knows this to be true from the multiple status conferences that have been
conducted to discuss discovery. Plaintiffs argue that additional discovery is required so that they
can oppose the Sheriff’s alternative basis for dismissal: that the Sheriff lacks authority to alter or

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amend a sentence opposed by a judge. However, Plaintiffs do not allege a factual dispute that
would preclude resolution of the Sheriff’s claims. Instead, they cite various statutory provisions
which they say the Sheriff violated.
The Court finds it appropriate to stay class certification discovery pending resolution of
the Sheriff’s Motion to Dismiss. Plaintiffs have not presented any reason why discovery must
proceed now. On the other hand, the discovery that has been requested is voluminous and if the
Sheriff’s Motion to Dismiss is successful, then it will not have been necessary to conduct the
discovery. Further, Plaintiffs have not established that discovery is necessary to oppose the
Sheriff’s alternative “no duty” argument in its motion to dismiss. It appears that is a claim that
involves analysis of the applicable statutes.
Conclusion
It is clear from Plaintiffs’ opposition that their focus in discovery has shifted to the
discovery they say is necessary to defeat the pending motions to dismiss. But Plaintiffs have not
established that discovery is needed to respond to those motions, and indeed, appear to be ready
to fully oppose. Importantly, the only discovery being conducted at this time, and the only
discovery that could be stayed, is class certification discovery. Plaintiffs have not argued why class
certification discovery should proceed pending resolution of the motion to dismiss, other than
perhaps the implication that because Plaintiffs believe they will defeat the motions to dismiss,
there is no reason to delay discovery. In light of the voluminous discovery that has been sought
from both the Defendants and non-parties, the Court finds it serves judicial economy to delay
further discovery pending resolution of the motions to dismiss.

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Accordingly, the Motions to Stay Discovery filed by Klees and the Sheriff (Rec. Docs.
316, 322) are GRANTED. Discovery is hereby stayed pending resolution of the Motions to
Dismiss (Rec. Docs. 307, 308, 309).
New Orleans, Louisiana, this 19th day of July, 2018.

Janis van Meerveld
United States Magistrate Judge

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