Nelson v. Louisiana Department Of Public Safety and Corrections et al

Filing 37

ORDER granting 27 Motion to Stay Discovery. ORDERED that discovery in this matter is STAYED pending resolution of the issues raised in the Motion to Dismiss. A scheduling conference will be reset, if necessary, following resolution of the Motion to Dismiss. Signed by Magistrate Judge Erin Wilder-Doomes on 05/09/2019. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DONALD NELSON

CIVIL ACTION NO.

VERSUS

18-282-SDD-EWD

LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS
ET AL
RULING AND ORDER
Before the Court 1 is a Motion to Stay Discovery (the “Motion to Stay”), 2 filed by
Defendant James M. LeBlanc (“LeBlanc”). The Motion is opposed 3 by Plaintiff China (Donald)
Nelson 4 (“Plaintiff”). For the reasons that follow, the Motion to Stay is granted. Discovery in this
matter is stayed pending resolution of the issues raised in the pending Motion to Dismiss Plaintiff’s
First Amended Complaint for Injunctive Relief. 5
I.

Background
A. Plaintiff’s Claims 6
Plaintiff is a transgender woman who has been on the approved visitor list at the Louisiana

State Penitentiary (“Angola”) for approximately fourteen years. During that period, Plaintiff
regularly visited her incarcerated brother, Timothy Lenoir (“Lenoir”). 7 However, on September

1
A magistrate judge may “hear and determine” non-dispositive pre-trial motions pursuant to 28 U.S.C. § 636(b)(1)(A).
Moreover, as this motion is not one of the motions excepted in 28 USC § 636(b)(1)(A), nor dispositive of any claim
on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling is issued under the
authority thereof. See Wilson v. Sharp, No. 17-84, 2017 WL 4685002 (M.D. La. Oct. 18, 2017) at *1, n. 3 (granting
motion to stay discovery) citing Boyd v. Occidental Fire & Casualty Co. of North Carolina, No. 10-0672, 2011 WL
4062383 at *1, n. 1 (M.D. La. Sept. 13, 2011).
2
R. Doc. 27.
3
R. Doc. 31.
4
While the case caption describes Plaintiff’s name as “Donald Nelson,” Plaintiff’s preferred name is “China.” R.
Doc. 11, ¶ 4.
5
R. Doc. 26.
6
The operative facts recited herein are according to Plaintiff’s allegations, but they do not appear to be disputed by
LeBlanc.
7
R. Doc. 11, ¶ 7.

10, 2017, Plaintiff was prevented from entering Angola when the “SecurePass” machine through
which she walked detected an “unknown object” in her pants. 8 Plaintiff advised the Angola guards
that she was born male, as indicated on her driver’s license, in order to explain the “unknown
object” detected by the machine, i.e., her male genitalia. 9 Nevertheless, the guards escorted
Plaintiff into the restroom and instructed her to remove her clothing. Plaintiff refused and was
then escorted into another room and instructed to remove her clothing. Plaintiff again refused to
remove her clothing and stated she would forgo the visit. Plaintiff returned to her car to wait for
the family members who had accompanied her. 10 While at the car, several guards again instructed
Plaintiff to remove her clothing so that the guards could conduct a search. Plaintiff refused to
remove her clothing for the third time but ultimately consented to a search of her car. 11 Plaintiff’s
family members arrived at the car and were advised that their visit was cancelled. 12 Thereafter,
Plaintiff and her mother each received a letter dated September 11, 2017 from Deputy Warden
Leslie Dupont on behalf of LeBlanc. The letters advised Plaintiff and her mother that they were
removed from Lenoir’s approved visitor list for six months. 13
On March 13, 2018, Plaintiff filed her original Complaint in this Court against the
Louisiana Department of Public Safety and Corrections (“the Department”), “Officers John and
Jane Does,” as the unknown officers who searched Plaintiff, and “ABC & XYZ Insurance
Companies” as defendants’ insurance carriers. Plaintiff brings claims under 42 U.S.C. § 1983,
alleging that her Constitutional rights were violated when she was deprived of the privilege of
visiting her brother incarcerated at Angola because she refused to consent to an unreasonable strip

8

R. Doc. 11, ¶¶ 9-10.
R. Doc. 11, ¶ 11.
10
R. Doc. 11, ¶¶ 12-14.
11
R. Doc. 11, ¶¶ 15-16.
12
R. Doc. 11, ¶¶ 17-18.
13
R. Doc. 11, ¶ 19.
9

2

search and that her Fourth Amendment rights 14 were violated when she was subjected to
unreasonable searches and seizures. Plaintiff’s original Complaint also included state law claims
alleging that she was denied visitation on the basis that she is a transgender woman in violation of
“Department Regulation No. C-02-008, paragraph 7” 15 and for Defendants’ negligent and reckless
actions in that the individual Defendants were not properly trained, supervised, or disciplined, and
in that the Department failed to adopt and enforce appropriate polices and procedures, negligently
hired the individual Defendants, and failed to take reasonable measures to ensure visitors were
protected from unlawful searches and seizures. 16 In connection with these claims, Plaintiff seeks
compensatory damages for pain, suffering, and emotional distress, punitive damages, costs,
interest, and attorney’s fees, as well as injunctive relief. 17
On April 30, 2018, the Department filed its Motion to Dismiss Plaintiff’s original
Complaint. 18 Therein, the Department asserted that this Court lacked subject matter jurisdiction
to hear any claims against the Department in its official capacity because it was immune from suit
pursuant to the Eleventh Amendment 19 and all such claims should be dismissed pursuant to Fed.
R. Civ. P. 12(b)(1). 20 Alternatively, the Department alleged that Plaintiff failed to state a claim
against the Department because State agencies such as the Department are not “persons” within

14

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.”
15
Plaintiff alleges that this Department regulation provides: “there shall be no discriminating in visiting. All visitors
and offenders shall be provided equal opportunities in visiting in accordance with the offender’s security classification
and housing assignment. Visitors shall be treated with courtesy at all times and shall not be subjected to unnecessary
delay or inconvenience in accomplishing a visit.” R. Doc. 1, ¶ 37.
16
R. Doc. 1, ¶¶ 26-41.
17
R. Doc. 1, ¶¶ 30, 35, 42-43 and prayer for relief.
18
R. Doc. 7.
19
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.”
20
R. Doc. 7, ¶ I.

3

the meaning of 42 U.S.C. §1983 and thus all such claims should be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6). 21
In response, Plaintiff filed her Opposition to the Motion to Dismiss 22 and sought leave to
file her First Amended Complaint for Injunctive Relief (“Amended Complaint”), 23 which is
currently the operative Complaint in this matter. The Amended Complaint deleted all claims
against the Department and the unnamed insurance companies, 24 and instead asserted claims
against the newly-added LeBlanc (and the unknown officers). 25

Furthermore, it removed

Plaintiff’s state law negligence claim and claims for compensatory damages, but retained
Plaintiff’s claims for punitive damages and injunctive relief based on the alleged deprivation of
Plaintiff’s rights under 42 U.S.C. § 1983, the Fourth Amendment, and/or Department Regulation
No. C-02-008. 26
B. Arguments of the Parties
On October 18, 2018, LeBlanc filed his Motion to Dismiss the Amended Complaint for
Injunctive Relief (“Motion to Dismiss”) and the instant Motion to Stay. 27 The Motion to Dismiss
asserts that this Court lacks subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) to hear
Plaintiff’s claims for reinstatement of her visiting privileges because the claim is not ripe, as
Plaintiff failed to seek an appeal with the Secretary of the Department, and/or Plaintiff lacks
standing to seek reinstatement because Department Regulation No. C-02-008 Section 20(C)(3)
provides that reinstatement of visitor privileges must be sought by written request of the offender,

21

R. Doc. 7, ¶ II.
R. Doc. 8.
23
R. Doc. 11.
24
Accordingly, and upon Order of the Court, the Department withdrew its Motion to Dismiss. R. Docs. 12, 15, and
18.
25
R. Doc. 11, ¶¶ 5-6.
26
R. Doc. 11, ¶¶ 23-37 and prayer for relief.
27
R. Docs. 26-27.
22

4

i.e., Lenoir, who has not submitted such a request. 28 The Motion to Dismiss also asserts that
Plaintiff has failed to state a claim against LeBlanc for supervisory liability in his personal capacity
“because supervisors cannot be held liable for their subordinates’ acts under § 1983;” 29 for
injunctive relief because the requests for searches were not unreasonable and had legitimate
penological goals; 30 and because LeBlanc is entitled to qualified immunity under both prongs of
the two-step qualified immunity analysis. 31
Concomitantly, LeBlanc’s Motion to Stay asserts that LeBlanc should not be subjected to
discovery until the issue of whether he is entitled to qualified immunity is resolved, relying on the
Fifth Circuit’s Lion Boulos v. Wilson holding that “[a] defendant entitled to claim qualified
immunity is shielded not only from liability but also from “the costs of trial [and] ... the burdens
of broad-reaching discovery.” 32
In Opposition to the Motion to Stay, Plaintiff contends that LeBlanc is not automatically
entitled to a stay of discovery because of his pending Motion to Dismiss. Rather, to obtain a Fed.
R. Civ. P. 26(c) protective order staying discovery, LeBlanc must show “the necessity of its
issuance, which contemplates a particular and specific demonstration of fact as distinguished form
stereotyped and conclusory statements.” 33 Plaintiff also relies on out-of-circuit authority for the
proposition that a stay should be granted only when a motion to dismiss appears “clearly
meritorious and truly case dispositive…rendering discovery a mere futile exercise.” 34 According

28

R. Doc. 26-1, pp. 6-7.
R. Doc. 26-1, p. 7.
30
R. Doc. 26-1, p. 11.
31
R. Doc. 26-1, pp. 12-14 and citing Pearson v. Callahan, 555 U.S. 223, 232 (2009) (other citations omitted).
32
R. Doc. 27-1, p. 2 citing 834 F.2d 504, 507 (5th Cir. 1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-18,
(1982)).
33
R. Doc. 31, p. 2 citing Fed. R. Civ. P. 26(c)(1)(D) and Hope Medical Group for Women v. LeBlanc, No. 06-9176,
2007 WL 1235445 at *2 (E.D. La. Apr. 26, 2007) (citing In re Terra Intern., Inc., 134 F.3d 302, 306 (5th Cir. 1998)).
34
R. Doc. 31, p. 3 citing Southern Motors Chevrolet, Inc. v. General Motors, LLC, No. 414-152, 2014 WL 5644089
at *1 (S.D. Ga. Nov. 4, 2014)(internal citations omitted).
29

5

to Plaintiff, LeBlanc has not shown that his Motion to Dismiss is “clearly meritorious” and instead
has only offered speculation that the Motion to Dismiss will dispose of this matter, which the Court
should reject as his mere belief as did the Northern District of Texas in Glazer’s Wholesale Drug.
Co., Inc. v. Klein Foods, Inc. 35
Plaintiff also asserts that, substantively, LeBlanc is not entitled to qualified immunity
because Plaintiff has alleged sufficient facts to show that LeBlanc violated her rights in that
LeBlanc is responsible for making the policies and procedures the guards followed when they
attempted to search Plaintiff and the guards’ actions carrying out such policies “directly implicate
[LeBlanc] and create liability for him….” 36 For this reason, Plaintiff avers that LeBlanc is not
guaranteed to have qualified immunity and the Motion to Stay should be denied.
II.

Law and Analysis
Fed. R. Civ. P. 26(c) allows the Court to issue a protective order after a showing of good

cause “to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense.” 37 Fed. R. Civ. P. 26(c)(1)’s “good cause” requirement indicates that the party seeking
a protective order has the burden “to show the necessity of its issuance, which contemplates a
particular and specific demonstration of fact as distinguished from stereotyped and conclusory
statements.” 38 “A trial court has broad discretion and inherent power to stay discovery until
preliminary questions that may dispose of the case are determined.” 39

35

R. Doc. 31, p. 3 citing Glazer’s Wholesale Drug Co, Inc. v. Klein Foods, Inc., No. 08-0774, 2008 WL 2930482 at
*1 (N.D. Tex. July 23, 2008).
36
R. Doc. 31, pp. 3-4.
37
June Medical Services, LLC v. Gee, No. 17-404, 2018 WL 357874 at *2 (M.D. La. Jan. 10, 2018) citing In re Terra
Intern., Inc., 134 F.3d at 306 (quoting U.S. v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir. 1978)).
38
In re Terra Intern., Inc., 134 F.3d at 306.
39
June Medical Services, 2018 WL 357874, at *2 (quoting Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987)).

6

LeBlanc, the only active Defendant in this case, 40 alleges that good cause exists to enter a
stay of discovery due to his pending Motion to Dismiss, which raises a threshold issue and
preliminary question that could dispose of the case, i.e., whether he is entitled to qualified
immunity. “Qualified immunity shields ‘government officials performing discretionary functions’
from civil liability for claims under federal law ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”41
“[Q]ualified immunity constitutes an ‘immunity from suit rather than a mere defense to liability.’”42
The issue of qualified immunity should be resolved at the earliest possible stage of litigation
because “[o]ne of the most salient benefits of qualified immunity is protection from pretrial
discovery, which is costly, time-consuming, and intrusive.” 43
The Fifth Circuit has long held that an assertion of qualified immunity shields a
government official from discovery that is “avoidable or overly broad.” 44 Significantly, “it is only
when the district court ‘is unable to rule on the immunity defense without further clarification of
the facts’ and when the discovery order is ‘narrowly tailored to uncover only those facts needed to
rule on the immunity claim,’ that an order allowing limited discovery is neither avoidable nor
overly broad.” 45 Although discovery on the issue of qualified immunity is possible, such discovery
“must not proceed until the district court first finds that the plaintiff’s pleadings assert facts which,
if true, would overcome the defense of qualified immunity.” 46 “If the complaint alleges facts to

40

As mentioned, Plaintiff’s Amended Complaint deleted all claims against the Department and the “Officer John and
Jane Does” have never been identified.
41
Randle v. Lockwood, 666 Fed. App’x. 333, 335 (5th Cir. 2016) (internal citations omitted).
42
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam) (emphasis in original).
43
Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (internal citations omitted).
44
Lion Boulos, 834 F.2d 504 at 507.
45
Wilson, 2017 WL 4685002 at *2, (citing Lion Boulos, 834 F.2d at 507-08).
46
Wicks v. Mississippi State Employment Services, 41 F.3d 991, 994 (5th Cir. 1995) (internal citations omitted). See
also Baker v. Ephion, No. 15-838, 2017 WL 3996415 at *2 (M.D. La. Sept. 11, 2017) (staying discovery in light of
defendant’s asserted qualified immunity defense and explaining that “discovery on the issue of qualified immunity
‘must not proceed until the district court first finds that the plaintiff’s pleadings assert facts which, if true, would

7

overcome the defense of qualified immunity, the district court may then proceed under Lion Boulos
to allow the discovery necessary to clarify those facts upon which the immunity defense turns.” 47
Accordingly, Fifth Circuit precedent permits discovery only after a determination has been
made that the plaintiff has alleged facts sufficient to state a claim against the defendant. Even
discovery limited to the issue of qualified immunity is only allowed if the court is unable to rule
on the qualified immunity defense without additional facts and then only such discovery as is
necessary to rule on the qualified immunity defense is permitted.
Citing out-of-circuit authority, Plaintiff alleges that discovery should proceed because
LeBlanc has not shown that his pending Motion to Dismiss will be “clearly meritorious.” 48
However, the foregoing Fifth Circuit precedent makes clear that, before any discovery can proceed
against a defendant asserting qualified immunity, the Court must first determine if Plaintiff has
alleged sufficient facts to overcome the qualified immunity defense. The Court’s required finding

overcome the defense of qualified immunity.’”) (citing Wicks); Lee v. Ard, No. 17-23, 2017 WL 5349493 at * 7 (M.D.
La. Nov. 13, 2017) (“When the defense of qualified immunity is raised in a Rule 12(b)(6) motion, ‘it is the defendant’s
conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.’ The plaintiff must support
his claim with ‘sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant’s
conduct at the time of the alleged acts.’ When greater detail is required to address the defense of qualified immunity,
the Court may insist that a plaintiff file a reply pursuant to Federal Rule of Civil Procedure 7(a) tailored to an answer
pleading the defense of qualified immunity. ‘The district court need not allow any discovery unless it finds that
plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the
illegality of defendant’s conduct at the time of the alleged acts.’”) (internal citations and quotations omitted).
47
41 F.3d at 995. See also Backe, 691 F.3d at 648 (“a plaintiff seeking to overcome qualified immunity must plead
specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has
alleged and that defeat a qualified immunity defense with equal specificity. 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 to uncover only those facts needed to rule on the immunity claim.’”)
(citing Lion Boulos, 834 F.2d at 507-08); Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014) (“The district court
failed to make an initial determination that the plaintiffs’ allegations, if true, would defeat qualified immunity, falling
short of the finding required by Backe and Wicks; and unlike the court in Lion Boulos, the district court did not identify
any questions of fact it needed to resolve before it would be able to determine whether the defendants were entitled to
qualified immunity.”); Randle, 666 Fed. App’x. 336, n. 6 (noting that the “narrow exception to the general rule that
qualified immunity should be decided as early in the litigation as possible” is only applicable where the district court
first determines that “the plaintiff’s pleadings assert facts which, if true, would overcome the defense of qualified
immunity,” and second, finds that despite plaintiff’s pleadings it is still unable to rule on the immunity defense without
further clarification of the facts.).
48
R. Doc. 31, pp. 2-3 citing Southern Motors Chevrolet, Inc., 2014 WL 5644089 at *1, which is not controlling.

8

on this issue will necessarily address Plaintiff’s second argument in opposition to a stay, which is
that a stay should not be entered because Plaintiff has alleged sufficient facts to show that LeBlanc
violated her rights and thus LeBlanc is not entitled to qualified immunity. 49
Furthermore, Plaintiff’s authority is distinguishable. Plaintiff urges the Court to follow the
North District of Texas’s Glazer’s Wholesale Drug. Co., Inc. decision, which denied a stay that
was premised on the defendant’s belief in the merits of its pending Motion to Dismiss.50 However,
Glazer’s Wholesale Drug. Co., Inc. involved private (i.e., non-governmental) litigants 51 and did
not involve a pending motion to dismiss raising a qualified immunity defense. 52
In summary, LeBlanc has raised a qualified immunity defense in his Motion to Dismiss,
which is currently pending before the district judge. Fifth Circuit precedent supports the issuance
of a stay as to LeBlanc pending a resolution of the Motion to Dismiss and Plaintiff has not argued
that a stay of discovery to permit resolution of the qualified immunity issue will prejudice her in
any way. The Court finds that LeBlanc has shown good cause for the imposition of a stay of
discovery pending resolution of his Motion to Dismiss.
III.

Conclusion
Accordingly, for the reasons set forth herein, the Motion To Stay Discovery 53 filed by

Defendant James LeBlanc is GRANTED.

49

R. Doc. 31, pp. 3-4.
Glazer’s Wholesale Drug Co., 2008 WL 2930482 at *1.
51
The plaintiffs were wine distributors and the moving defendant was a wine producer. No. 08-774 (N.D. Tex. July
18, 2008), R. Doc. 17, p. 1.
52
The moving defendant sought dismissal of the plaintiffs’ claims on procedural grounds such as the expiration of the
statute of frauds, among other grounds not applicable here. No. 08-774 (N.D. Tex. July 18, 2008), see R. Doc. 16 and
R. Doc. 17, pp. 5-6.
53
R. Doc. 27.
50

9

IT IS HEREBY ORDERED that discovery in this matter is STAYED pending resolution
of the issues raised in the Motion to Dismiss.54 A scheduling conference will be reset, if necessary,
following resolution of the Motion to Dismiss.
Signed in Baton Rouge, Louisiana, on May 9, 2019.

S

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

54

R. Doc. 26.

10