Doe et al v. Hood et al

Filing 44

ORDER denying 15 Motion for Summary Judgment; denying 20 Motion to Certify Class; and granting 25 Motion for Discovery. Signed by District Judge Carlton W. Reeves on 6/2/17. (rg)

Case 3:16-cv-00789-CWR-FKB Document 44 Filed 06/02/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ARTHUR DOE; BRENDA DOE; CAROL
DOE; DIANA DOE; and ELIZABETH
DOE
V.

PLAINTIFFS

CAUSE NO. 3:16-CV-00789-CWR-FKB

JIM HOOD; MARSHALL FISHER;
CHARLIE HILL; COLONEL CHRIS
GILLARD; and LT. COLONEL LARRY
WAGGONER

DEFENDANTS

ORDER
Three motions are presently before the Court. First is plaintiffs’ motion for summary
judgment. Second, plaintiffs ask the Court to certify a class. Third, defendants seek an
opportunity to take discovery. Finding defendants’ motion dispositive, the Court does not reach
the merits of those submitted by plaintiffs.
A month after filing their complaint, plaintiffs filed a motion for summary judgment.
They argue that their case presents two purely legal questions: (1) whether Mississippi’s
“Unnatural Intercourse” statute violates plaintiffs’ rights to due process, per Lawrence v. Texas,
539 U.S. 558 (2003); and (2) whether Mississippi’s treatment of out-of-state offenses as
equivalent to an “Unnatural Intercourse” conviction violates plaintiffs’ rights to equal protection.
Plaintiffs simultaneously moved to certify a class. Defendants replied with the limited
information available to them, and requested an opportunity to take discovery.
A party is entitled to discovery prior to a ruling on a motion for summary judgment, “[i]f
a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.” Fed. R. Civ. P. 56(d). “Rule 56(d) discovery motions are
‘broadly favored and should be liberally granted.’” Biel Loan Co. III-A, LLC v. Lee Freyer

Case 3:16-cv-00789-CWR-FKB Document 44 Filed 06/02/17 Page 2 of 2

Kennedy Crestview, LLC, No. 1:10-CV-153-HSO-JMR, 2011 WL 1321328, at *1-2 (S.D. Miss.
Apr. 4, 2011) (quoting Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)). “[T]he
rule is designed to safeguard non-moving parties from summary judgment motions that they
cannot adequately oppose.” Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887,
894 (5th Cir. 2013) (quotation marks and citation omitted).
Defendants ask for discovery to determine which plaintiffs or other putative class
members are on Mississippi’s Sex Offender Registry “solely for conduct recognized as
constitutionally protected by Lawrence v. Texas.” They have invoked the rule and filed the
required affidavit.
The Court agrees that defendants should be afforded an opportunity to confirm the nature
of each individual’s “registerable offense(s).”1 Discovery is necessary for responding to
plaintiffs’ motion for summary judgment as well as the process of class certification. See, e.g.,
McDougle v. Neshoba Cnty. Miss., No. 3:15-CV-350-CWR-FKB, 2016 WL 83785 (S.D. Miss.
Jan. 7, 2016). Discovery will be conducted, however, in accordance with the Court’s Order
issued this date, to preserve plaintiffs’ anonymity.
Defendants’ motion for discovery and the entry of a scheduling order is granted.
Plaintiffs’ motions for summary judgment and class certification are dismissed without prejudice
to their refiling.
SO ORDERED, this the 2nd day of June, 2017.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

1

To confirm, for example, that (1) the only conviction that would require plaintiffs and putative class members to
comply with Mississippi’s Sex Offender Registry was Unnatural Intercourse or its out of state equivalent; and (2)
that the facts supporting the conviction involved only consenting adults.

2