Balfour v. Jackson HMA, LLC et al

Filing 141

ORDER granting in part and denying in part 117 Motion for Discovery. Signed by Magistrate Judge Michael T. Parker on January 7, 2025. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SUSIE ANNIE BALFOUR

PLAINTIFF

v.

CIVIL ACTION NO. 3:24-cv-93-KHJ-MTP

JACKSON HMA, LLC, ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Relief from Discovery Stay
[117]. Having considered the parties’ submissions, the record, and the applicable law, the Court
finds the Motion [117] should be granted in part and denied in part.
Plaintiff Susie Annie Balfour filed this action on February 14, 2024, asserting that she
was incarcerated at the Central Mississippi Correctional Facility for 33 years before her release
in December of 2021. See Amended Complaint [45] at 8. Plaintiff alleges that while
incarcerated she was required to clean the prison with chemicals known to cause cancer without
any protective equipment. Id. She now has terminal, Stage IV breast cancer. Id.
Plaintiff also alleges that Defendants “failed to recognize or outright ignored the presence
of suspicious masses in [her] breasts, failed to inform her of the presence of those suspicious
masses, and/or failed to conduct, order, or refer her for additional diagnostic examinations and/or
procedures to confirm or deny the presence of breast cancer.” Id. at 8-9. These failures, says
Plaintiff, allowed years to pass without treatment. Id.
On July 11, 2024, the Court entered a Case Management Order [91] allowing the parties
to conduct discovery through March 3, 2025. On October 16, 2024, however, Defendant Dr.
Gloria Perry filed a Motion for Summary Judgment [109], along with a Motion for Stay of
Discovery [111]. Dr. Perry asserted various immunity defenses in her Motion for Summary
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Judgment [109], and therefore, the Court granted the Motion for Stay of Discovery [111] in
accordance with Local Rule 16(b)(3)(B).1 See Order [114]. Thus, all discovery and disclosure
requirements are stayed pending a ruling on the Motion for Summary Judgment [109].
On November 11, 2024, Plaintiff filed a Response [115] to the Motion for Summary
Judgment [109] arguing that, pursuant to Fed. R. Civ. P. 56(d), the Motion [109] should be
denied or, alternatively, the ruling should be deferred until discovery is completed. Plaintiff
argues that she needs discovery relating to the issue of whether Dr. Perry is entitled to qualified
immunity.
On November 11, 2024, Plaintiff also filed a Motion for Relief from Discovery Stay
[117] requesting that the Court allow her to proceed with discovery as to all the other
Defendants. Dr. Perry filed a Response [121] opposing the Motion [117],2 and on December 9,
2024, Plaintiff filed a Reply [130].
In her Reply [130], Plaintiff again asks that she be allowed to proceed with discovery as
to all Defendants, save Dr. Perry. Plaintiff, however, adds an alternative request, that she be
granted leave to conduct a deposition to preserve her own testimony.
As Plaintiff first raised the issue of a preservation deposition in her Reply [130], the
Court provided Defendants an opportunity to respond. See Order [131]. On December 18, 2024,

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Local Rule 16(b)(3)(B) provides as follows:
Filing a motion to compel arbitration, or a motion asserting an immunity defense
or jurisdictional defense stays the attorney conference and disclosure requirements
and all discovery, pending the court’s ruling on the motion, including any appeal.
Whether to permit discovery on issues related to the motion and whether to permit
any portion of the case to proceed pending resolution of the motion are decisions
committed to the discretion of the court, upon a motion by any party seeking relief.

2

Defendants Dr. Derek Dyess, Dr. Joseph Oliver, Centurion of Mississippi, LLC, and VitalCore
Health Strategies, LLC joined Dr. Perry’s Response [121]. See Joinders [125] [126] [127] [128].
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Defendant Centurion of Mississippi, LLC filed a Response [134] opposing Plaintiff’s request for
leave to conduct a preservation deposition.3
The Court will address in turn Plaintiff’s request for leave to conduct discovery and her
alternative request for leave to conduct a preservation deposition.
As mentioned, Plaintiff asks in the instant Motion [117] that she be allowed to conduct
discovery as to all Defendants, save Dr. Perry, who raised the defense of qualified immunity in
her Motion for Summary Judgment [109].
Dr. Perry argues that pursuant to Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022), no
discovery should occur as she is entitled to protection from the burden of discovery, including
discovery not directed to her, until Plaintiff overcomes her qualified immunity defense. See
[121].
Plaintiff argues that Carswell is not applicable here because that “decision is limited to
situations in which qualified immunity is asserted in a motion to dismiss at the inception of the
case.” See [130] at 4. Indeed, Carswell concerned a motion to dismiss, and the Fifth Circuit held
that a plaintiff “must survive the motion to dismiss without any discovery.” Carswell v. Camp,
54 F.4th 307, 311 (5th Cir. 2022).
Carswell, however, also provides instructions concerning motions for summary
judgment. Carswell directs defendants to two choices after a motion to dismiss based on
qualified immunity is denied: “First, the defendant can immediately appeal the district court’s
denial under the collateral order doctrine. Or second— à la Lion Boulos and its progeny—the

Defendants Dr. Derek Dyess, Dr. Joseph Oliver, Dr. Mohmed El Zein Ahmed, and Jackson
HMA, LLC, and joined Centurion’s Response [134]. See Joinders [135] [136] [137] [138].

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defendant can move the district court for discovery limited to the factual disputes relevant to
whether QI applies, then reassert QI in a summary judgment motion.” Id. at 312.
Given this instruction and considering the procedural posture in this case, the Court is not
convinced that Carswell is inapplicable. Here, Dr. Perry has foregone filing a motion to dismiss
based on qualified immunity and instead has filed a Motion for Summary Judgment [109]. And,
Plaintiff—in her Response [115]—is seeking limited discovery à la Lion Boulos and its
progeny.4 Dr. Perry is now in a position similar to the defendant described in Carswell who
reasserts the immunity defense in a motion for summary judge after losing a motion to dismiss.
See Erwin v. Murray, 2023 WL 7112830, at *3 (E.D. La. Oct. 27, 2023). Moreover, since
Plaintiff filed her Motion for Relief from Discovery Stay [117], Defendants Yvonne Barton,
Katrice Funchess, Irish Harris, and Linda Nolan have filed a Motion to Dismiss [122] based in
part on qualified immunity.
Under these circumstances, the Court finds that discovery should remain stayed pending
rulings on the Motion for Summary Judgment [109] and Motion to Dismiss [122] or further
order from the Court.
The Court turns now to Plaintiff’s request for leave to conduct a preservation deposition.
Plaintiff asserts that her terminal medical condition justifies allowing her deposition to preserve
her testimony for trial.
“The concept of perpetuation of testimony has ancient roots deeply grounded in equity.”
19th Street Baptist Church v. St. Peters Episcopal Church, 190 F.R.D. 345, 347 (E.D. Pa. 2000).
Although this issue does not technically fall under Fed. R. Civ P. 27—as that Rule governs

4

The issue of whether to allow limited discovery relating to Dr. Perry’s qualified immunity
defense will be addressed by the District Judge in her review of the Motion for Summary
Judgment [109], and this Order makes no ruling on that issue.
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preservation of testimony before a suit is filed and while an appeal is pending—the
considerations applicable to Rule 27 nevertheless provide helpful guidance here.
To justify a deposition to perpetuate testimony under Rule 27, a plaintiff must explain
what the testimony would demonstrate and must show a substantial chance that the testimony
may be lost. Hardin-Warfield v. Mosby, 2006 WL 1366727, at *2-3 (S.D. Miss. May 18, 2006)
(citing In re Matter of Allegretti, 229 F.R.D. 93, 96 (S.D.N.Y. 2005) and Lucas v. Riddle, 2004
WL 1084719, at *1 (D.Conn. May 11, 2004)). Courts allow such depositions “[i]f satisfied that
perpetuating the testimony may prevent a failure or delay of justice . . . .” Fed. R. Civ. P.
27(a)(3).
Plaintiff explains that her testimony will provide an account of the progression of her
illness, the impact of Defendants’ conduct, and the damages she has suffered. Plaintiff also
provides medical records showing that her testimony is likely to be lost in the near future due to
aggressive breast cancer.
The medical records demonstrate that Plaintiff has Stage IV breast cancer. See Medical
Records [130] at 1. She was first diagnosed with invasive ductal carcinoma of her right breast in
2021. Id. Thereafter, the cancer spread to her lymph nodes and skeleton and, by 2023, had
spread to her liver and spine. Id. at 1-2. On August 21, 2024, imaging revealed that the tumor on
her liver is growing, despite treatment. See [130-1].
Defendants do not contest that Plaintiff’s terminal cancer makes it substantially likely her
testimony will be lost. Instead, Defendants argue that “all discovery must be stayed as to all
parties until the issue of qualified immunity is resolved.” See [134] at 5.
As the prior discussion shows, this Court is aware that qualified immunity is “an
immunity from suit” and provides protections from the burdens of discovery. See Carswell, 54

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F.4th 307 at 310. The Court does not intend to erode these protections. Plaintiff points out,
however, that she does not seek to be deposed for purposes of discovery, but to preserve her
testimony at trial. See [130] at 10.
Given the circumstance here, including Plaintiff’s terminal cancer and Defendants’
decision to not present the issue of qualified immunity “at the earliest possible stage of the
litigation,”5 the Court finds that equity favors granting Plaintiff leave to conduct a preservation
deposition. See Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967) (allowing the deposition of a
witness of advanced age to perpetuate his testimony in a suit that had been stayed pending the
resolution of a parallel criminal prosecution); 19th Street Baptist Church, 190 F.R.D. 346-52
(allowing the depositions of elderly plaintiffs to perpetuate their testimony prior to the court’s
ruling on the defendants’ jurisdictional defenses); Charles v. Wade, 665 F.2d 661, 664 (5th Cir.
1982) (allowing the deposition of a witness to perpetuate his testimony after the close of
discovery).
To help prevent “surprise” during Plaintiff’s testimony and to allow all parties to
adequately prepare, Plaintiff, on or before January 21, 2025, shall produce a detailed proffer
setting forth her expected testimony and copies of any documents she will rely on during her
testimony. Promptly thereafter, Plaintiff’s deposition shall be scheduled.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Relief from Discovery Stay
[117] is GRANTED in part and DENIED in part as set forth herein.
SO ORDERED this the 7th day of January, 2025.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE
5

See Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021). No motion based on qualified
immunity was filed until more than three months into discovery.
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