SaLazar v. Norfolk Regional Center et al

Filing 71

MEMORANDUM AND ORDER - Defendants' Motion to Stay Discovery (filing no. 53 ) is granted. Plaintiff's Motion to Compel (filing no. 49 ) and Motion to Take Deposition (filing no. 51 ) are denied without prejudice to reassertion after the court rules on the pending Motion for Summary Judgment. Plaintiff's Motions for Default Judgment (filing nos. 56 , 57 and 60 ) are denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMBROSIO SALAZAR JR.,
Plaintiff,
v.
NORFOLK REGIONAL CENTER,
et al.,
Defendants.

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4:11CV3207

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion to Stay Discovery (filing
no. 53) and Plaintiff’s Motion to Compel (filing no. 49), Motion to Take Deposition
(filing no. 51), and Motions for Default Judgment (filing nos. 56, 57 and 60). The
court will address each Motion in turn.
I.

Defendants’ Motion to Stay Discovery
Defendants ask the court to stay further discovery in this matter because they

have filed a Motion for Summary Judgment that raises the defense of qualified
immunity. (See Filing Nos. 53 and 65.) Qualified immunity is “an immunity from
suit rather than a mere defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227
(1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The doctrine of qualified
immunity is designed to protect state actors from monetary damages and the costs
associated with litigation, including discovery. Harlow v. Fitzgerald, 457 U.S. 800,
817–818 (1982). Thus, where qualified immunity is asserted as a defense, it is within
the discretion of the court to stay discovery until the issue of qualified immunity is
resolved. See Ballard v. Heineman, 548 F.3d 1132, 1136–37 (8th Cir. 2008).
In some cases where a defendant has filed a summary judgment motion based
on qualified immunity, courts may allow limited discovery on the issue of qualified
immunity. See Lovelace v. Delo, 47 F.3d 286, 287 (8th Cir. 2008). However, in order

to support a request for limited discovery on the issue of qualified immunity, Plaintiff
must indicate that he “cannot present facts essential to justify [his] opposition” to
Defendants’ Summary Judgment Motion. Fed. R. Civ. P. 56(d); see also Ballard, 548
F.3d at 1137.
In this case, Plaintiff has not filed a brief opposing Defendants’ Motion to Stay.
(See Docket Sheet.) Moreover, the other documents in the record do not show that
Plaintiff cannot present facts essential to justify his opposition to Defendants’ Motion
for Summary Judgment. Thus, the court will grant Defendants’ Motion to Stay.
II.

Plaintiff’s Motion to Compel and Motion to Take Deposition
Because the court has stayed discovery in this matter, Plaintiff’s Motion to

Compel (filing no. 49) and Motion to Take Deposition (filing no. 51) are denied.
III.

Plaintiff’s Motions for Default Judgment
Plaintiff has filed three Motions for Default Judgment that, when liberally

construed, argue that Plaintiff is entitled to default judgment because he was never
served with Defendants’ Amended Answer. (See Filing Nos. 56, 57 and 60.) This
argument is without merit. Defendants attached a copy of their Amended Answer to
their Motion to Amend Answer filed on August 21, 2012. (Filing No. 42-1.) The
court granted this motion and Defendants filed their Amended Answer on August 28,
2012. (See Filing Nos. 44 and 45.) Plaintiff’s Motions for Default Judgment are
denied.
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion to Stay Discovery (filing no. 53) is granted.

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2.

Plaintiff’s Motion to Compel (filing no. 49) and Motion to Take

Deposition (filing no. 51) are denied without prejudice to reassertion after the court
rules on the pending Motion for Summary Judgment.
3.

Plaintiff’s Motions for Default Judgment (filing nos. 56, 57 and 60) are

denied.
DATED this 16 th day of November, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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