Craven et al v. Perry County et al

Filing 17

ORDER granting in part and denying in part 6 Motion for Qualified Immunity and Stay; granting in part and denying in part 11 Motion for Qualified Immunity Scheduling Order. The parties shall conduct certain discovery as set forth in the Order. Defendants shall file their dispositive motion based on the defense of qualified imunity within 30 days of the completion of the discovery period. Signed by District Judge Keith Starrett on 8/17/12 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
HERSHALL CRAVEN, Beneficiary of Michael Craven;
SHANE CRAVEN, Beneficiary of Michael Craven;
BRIAN CRAVEN, Beneficiary of Michael Craven; and
ROXANNE CRAVEN, Beneficiary of Michael Craven
V.

PLAINTIFFS

CIVIL ACTION NO.: 2:12-cv-99-KS-MTP

PERRY COUNTY, a political subdivision;
JEREMY MCSWAIN, Individually; and
JIMMY DALE SMITH, Individually and in his
official capacity as Sheriff of Perry County

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants Jeremy McSwain and Jimmy Dale
Smith’s Motion for Qualified Immunity and Stay [6] and Plaintiffs’ Motion for Qualified
Immunity Scheduling Order [11]. Defendants request a stay of proceedings while
discovery related to their defense of qualified immunity is conducted. Defendants
anticipate filing a dispositive motion based upon qualified immunity after such discovery
is completed. Plaintiffs request a scheduling order from the Court giving the parties 120
days to conduct discovery related to the defense of qualified immunity, and thereafter,
30 days for briefing on the subject defense. The Court, having considered the
submissions of the parties, the record and the applicable law, finds that discovery
specifically tailored to the issue of qualified immunity should be allowed and that, as
outlined below, a scheduling order should be entered for the completion of such
discovery and for the Defendants’ filing of a dispositive motion on the defense of
qualified immunity.
I. BACKGROUND
This is an action for wrongful death brought by the siblings of Michael Craven

against Jeremy McSwain (a deputy sheriff with the Perry County Sheriff’s Department),
Jimmy Dale Smith (the Sheriff of Perry County), and Perry County, Mississippi.
Plaintiffs allege that on or about February 8, 2011, Deputy McSwain responded to a
single vehicle accident involving Michael Craven. (See Complaint [1] at ¶ 10.) Deputy
McSwain arrested Craven for driving under the influence (“DUI”) after investigating the
incident and speaking with a witness to the accident named Joanne Hamby. (See
Complaint [1] at ¶ 13.) Plaintiffs contend Hamby was an acquaintance of Craven and
that she told Deputy McSwain, inter alia, that Craven had previously suffered a stroke
and that she thought Craven needed immediate medical attention. (See Complaint [1]
at ¶ 12.) Plaintiffs allege that Deputy McSwain wrongfully refused to provide Craven
with medical attention, and instead arrested Craven for DUI. (See Complaint [1] at ¶
15.) Craven was released from custody approximately two and one-half (2½) hours
after being arrested. (See Complaint [1] at ¶ 17.) Plaintiffs contend that Deputy
McSwain drove Craven to his residence in Jones County at the direction of Sheriff
Smith after the Sheriff had been advised of Craven’s medical issues. (See Complaint
[1] at ¶ 17.) Plaintiffs state that Craven died less than one hour after being delivered to
his home. (See Complaint [1] at ¶ 21.)
On June 7, 2012, Plaintiffs filed their Complaint in this Court. Subject matter
jurisdiction is asserted under 28 U.S.C. §§ 1331 and 1367. Plaintiffs allege that
Defendants’ failure to provide Craven with medical assistance violated his rights under
the Eighth and Fourteenth Amendments of the U.S. Constitution, entitling them to relief
under 42 U.S.C. § 1983. Damages are also sought under Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973,

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29 U.S.C. 794(a). Plaintiffs further seek relief under the Mississippi Tort Claims Act,
Miss. Code Ann. §§ 11-46-1 to -23, and assert a general negligence claim against
Deputy McSwain and Sheriff Smith.1
On July 3, 2012, Defendants filed their Answer [3]. Both Sheriff Smith and
Deputy McSwain raised the defense of qualified immunity. (See Answer [3] at pp. 1-2.)
On July 5, 2012, Smith and McSwain filed their Motion for Qualified Immunity and Stay
[6]. On July 12, 2012, the Court entered an Order [7] staying “the attorney conference,
disclosure requirements and all discovery not related to the immunity defense” pursuant
to the Motion [6] and Local Rule 16(b)(3). See L.U.Civ.R. 16(b)(3)(B) (“Filing a motion .
. . [raising] an immunity defense . . . stays the attorney conference and disclosure
requirements and all discovery not related to the issue . . . . Whether to permit
discovery on issues related to a motion asserting an immunity defense . . . is a decision
committed to the discretion of the court.”). On July 25, 2012, Plaintiffs filed their Motion
for Qualified Immunity Scheduling Order [11], requesting that the Court “resolve the
issues of qualified immunity upon the completion of immunity-related discovery after the
submission of appropriate supplemental briefing and the submission of authorities.”
(See Motion [11] at ¶ 2.) On August 7, 2012, Deputy McSwain and Sheriff Smith served
“Immunity-Related” Interrogatories and Requests for Production of Documents to the
Plaintiffs. (See Notices of Service [14], [15].)
II. DISCUSSION
The central issue before the Court is whether to allow discovery related to

1

Plaintiffs’ negligence claim has been dismissed under Federal Rule of Civil
Procedure 12(b)(6). (See Memorandum Opinion and Order [16].)
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Deputy McSwain and Sheriff Smith’s defense of qualified immunity. Under a qualified
immunity defense, government officials are protected “‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The purpose underlying
the doctrine is to preclude “‘distraction of officials from their governmental duties,
inhibition of discretionary action, and deterrence of able people from public service.’”
Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987) (quoting Harlow, 457 U.S. at 816).
“To this end, qualified immunity serves to terminate a claim against a public official as
soon as possible in a judicial proceeding, even before discovery.” Hare v. City of
Corinth, 135 F.3d 320, 325 (5th Cir. 1998) (emphasis added) (citing Siegert v. Gilley,
500 U.S. 226, 232, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991)). “Generally, a
court should allow discovery only if it finds that the officer’s conduct violated a clearly
established right.” Izen v. Catalina, 256 F.3d 324, 330 (5th Cir. 2001) (citation omitted);
see also Moore v. Louisiana, 210 F.3d 369, 2000 WL 294462, at *2 (5th Cir. Feb. 25,
2000) (providing that qualified immunity protects public officials from discovery unless
the complaint asserts facts which, if true, would defeat the defense).
This case appears to be unique in that Deputy McSwain and Sheriff Smith, the
parties potentially protected by the defense of qualified immunity, have not only
requested that discovery related to the defense be allowed, but have also moved
forward with propounding such discovery to the Plaintiffs. (See Notices of Service [14],
[15].) This Court is unaware of any opinion from the Supreme Court or Fifth Circuit

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prohibiting discovery pending a ruling on whether the complaint alleges a sufficient
rights violation under such circumstances. On the other hand, the Fifth Circuit has held
that “qualified immunity is a defense subject to waiver, . . . .” Magee v. Cabana, 35 F.3d
559, 1994 WL 499588, at *2 (5th Cir. Aug. 22, 1994) (citing Martin v. Thomas, 973 F.2d
449, 459 (5th Cir. 1992)). If the defense of qualified immunity can be waived, then so
can the attendant prohibition on discovery prior to a finding that the complaint alleges
facts that would defeat the defense. Cf. Largent v. City of Dallas, 44 F.3d 1004, 1995
WL 10516, at *4 (5th Cir. Jan. 3, 1995) (holding that a public official waived his ability “to
limit the scope of his deposition to facts essential to his qualified immunity defense”).
The Court finds that discovery specifically related to the defense of qualified immunity
should be allowed at this time since both the Plaintiffs and Defendants seek to conduct
such discovery.
III. CONCLUSION
The parties may conduct discovery limited in scope to determining facts
necessary for the resolution of whether Deputy McSwain and Sheriff Smith “violated
‘clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Boulos, 834 F.2d at 508 (quoting Harlow, 457 U.S. at 818). As further
detailed below, depositions and written discovery requests will be limited in number so
as to deter the possibility of discovery reaching issues beyond the defense of qualified
immunity. Although Plaintiffs have requested 120 days to conduct discovery and
Defendants have not objected to this deadline, the Court finds that a shorter time
period, ninety (90) days, is warranted in order to keep this matter progressing in an
efficient and expeditious manner. Deputy McSwain and Sheriff Smith are to file their
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dispositive motion based on the defense of qualified immunity within thirty (30) days of
the completion of discovery. The Court will then enter an order setting dates certain for
the response and rebuttal.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for Qualified
Immunity and Stay [6] and Motion for Qualified Immunity Scheduling Order [11] are
granted in part and denied in part. The parties may conduct discovery specifically
tailored to resolving the issue of whether Deputy McSwain and Sheriff Smith violated
clearly established statutory or constitutional rights of which a reasonable person would
have known. Such discovery shall be completed within ninety (90) days from the entry
of this Order; and, each party is limited to propounding fifteen (15) interrogatories, ten
(10) requests for production, ten (10) requests for admission, and to taking the
deposition of any other party (except Perry County, Mississippi) and one (1) fact
witness.
IT IS FURTHER ORDERED AND ADJUDGED that the Defendants shall file their
dispositive motion based on the defense of qualified immunity within thirty (30) days of
the completion of the aforementioned discovery period.
SO ORDERED AND ADJUDGED this the 17th day of August, 2012.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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