Ferro v. Curry County Detention Center et al
Filing
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MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 30 Plaintiff's Motion for Limited Discovery (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ARTHUR FERRO,
Plaintiff,
v.
No. 18-cv-0223 GJF/SMV
BOARD OF COUNTY COMMISSIONERS
OF CURRY COUNTY and KENNETH LACEY,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR LIMITED DISCOVERY
THIS MATTER is before the Court on Plaintiff’s Motion for Limited Discovery [Doc. 30],
filed on July 3, 2018. Defendant Kenneth Lacey responded on July 17, 2018. [Doc. 35]. Plaintiff
did not file a reply, and the time for doing so has passed. The Court heard oral argument on
October 18, 2018. [Doc. 53]. Having considered the briefing, argument, relevant portions of the
record, and relevant authorities, and being otherwise fully advised in the premises, the Court finds
that Plaintiff’s motion is well-taken and will be GRANTED.
Background
On April 3, 2016, Plaintiff was arrested and booked into the Curry County Detention
Center (“CCDC”) in Clovis, New Mexico. [Doc. 1] at 2. He was placed into the “alpha pod,” the
maximum-security pod of the facility, despite being classified as “low,” or not showing signs of
violence or disruptive behavior. Id. He alleges that on April 8, 2016, two inmates hid in the
showers to avoid returning to their cells on the bottom tier of alpha pod for lockdown following
their recreation time. Id. at 3. Plaintiff alleges that the two inmates then went to the top tier of
alpha pod, which was not on lockdown, and attacked Plaintiff in his cell. Id. at 3–4. Plaintiff
alleges the attack lasted more than half an hour. Id. at 4. Plaintiff alleges that “[i]t is clear” from
the surveillance video of the incident that an attack is occurring inside his cell. Id.
Plaintiff filed the instant lawsuit against the Board of County Commissioners of
Curry County (“County”) and Kenneth Lacey, a detention officer, on March 8, 2018, asserting
claims under 42 U.S.C. § 1983 and related state-law claims. Plaintiff alleges that Defendant Lacey,
who was assigned to the alpha pod at the time of the attack, failed to check each individual
bottom-tier cell during lockdown and failed to check the shower area. Id. at 3. Had he done so,
Plaintiff alleges, he would have discovered that the inmates who attacked him were not in their
cells for lockdown. Id. Plaintiff further alleges that Lacey left the alpha pod while the top tier was
unlocked and neither he nor any other CCDC employee monitored the pod through video or
otherwise after Lacey left. Id. He alleges that Lacey’s actions and CCDC’s policies created the
unsafe conditions at the jail that led to his attack.
The Court entered an Initial Scheduling Order [Doc. 12] on May 2, 2018, and the parties
held their discovery conference pursuant to Fed. R. Civ. P. 26(f). On May 23, 2018, Plaintiff
served an interrogatory on the County asking it to “[i]dentify and explain the role of any person
other than Kenneth Lacey who was tasked with monitoring alpha pod during the incident.” [Doc.
30] at 1. On June 22, 2018, one day before the discovery response was due, Defendant Lacey filed
a motion for judgment on the pleadings and for qualified immunity. [Doc. 22]. Defendants
concurrently filed a Motion to Stay Discovery pending resolution of Defendant Lacey’s qualified
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immunity defense.1 [Doc. 23]. The Court granted the Motion to Stay on June 26, 2018, without
waiting on responsive briefing from Plaintiff.2 [Doc. 26].
Shortly thereafter, Plaintiff filed the instant motion requesting that the Court lift the
discovery stay in part. [Doc. 30]. Plaintiff seeks to complete discovery regarding the identification
of any other person who was responsible for monitoring alpha pod during the incident. He asserts
that this discovery is necessary so he may learn of any other culpable parties and move to add them
as defendants within the applicable statute of limitations, which he asserts will expire “within the
next ten months.” Id. at 1. Plaintiff maintains that he will suffer irreparable injury to the
vindication of his constitutional rights if he is unable to complete this discovery and timely join
additional parties. Id. at 3. Plaintiff further points out that he is requesting information from the
County, which does not have a qualified immunity defense, and not from Defendant Lacey. Id.
at 3–4. Finally, Plaintiff suggests that the qualified immunity motion is “likely to be denied on all
grounds.” Id. at 4. In a response filed July 17, 2018, Defendants maintain that Supreme Court and
Tenth Circuit precedent favor staying discovery pending resolution of qualified immunity
defenses, and the limited circumstances under which courts have permitted discovery to proceed
are not applicable here. [Doc. 35].
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The Honorable Gregory J. Fouratt, United States Magistrate Judge, who is presiding over this case, heard oral
argument on Defendant Lacey’s Motion for Judgment on the Pleadings and for Qualified Immunity [Doc. 22] on
August 21, 2018. [Doc. 45]. He denied the motion without prejudice on September 5, 2018. [Doc. 46]. Judge Fouratt
explained that he was inclined to find that Plaintiff had failed to allege facts with sufficient specificity to satisfy Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and its progeny. Id. at 1. However, he granted Plaintiff two weeks
to amend his complaint. Id. Plaintiff timely amended his complaint on September 11, 2018. [Doc. 47]. The County
answered on September 25, 2018. [Doc. 48]. Defendant Lacey, in lieu of filing an answer, filed a Motion to Dismiss,
renewing his assertion of qualified immunity. [Doc. 49].
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Plaintiff filed a response to the motion on June 27, 2018, the day after the Court ruled on the motion. [Doc. 28].
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Legal Standards
The doctrine of qualified immunity “protects government officials ‘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
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It “is an immunity from suit
rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It therefore
protects officials not only from having to stand trial, but also from having to bear the burdens
associated with litigation, including pretrial discovery.3 Ashcroft v. Iqbal, 556 U.S. 662, 685–86
(2009); Workman v. Jordan, 958 F.2d 332, 335 (10th Cir. 1992).
Accordingly, in the Tenth Circuit, a defendant is generally entitled to a stay of discovery
when he files a motion for qualified immunity. Workman, 958 F.2d at 336 (“Discovery should not
be allowed until the court resolves the threshold question whether the law was clearly established
at the time the allegedly unlawful action occurred.”). The policies underlying the stay require that
all discovery in the case be stayed, including as to other parties and claims that are unrelated to the
question of qualified immunity. Iqbal, 556 U.S. at 685–86; Herrera v. Santa Fe Pub. Sch.,
11-cv-0422 JB/KBM, 2012 WL 6846393, at *10 (D.N.M. Dec. 20, 2012); Morrow v. State of
New Mexico, 15-cv-0026 WJ/WPL, [Doc. 37] at 3 (D.N.M. June 15, 2015) (“Standard practice in
The Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible
stage in litigation.” Pearson, 555 U.S. at 231 (internal quotation marks omitted); see also Harlow, 457 U.S. at 818−19
(“Until this threshold immunity question is resolved, discovery should not be allowed.”). Certainly, “‘insubstantial
claims’ against government officials [should] be resolved prior to discovery.” Anderson v. Creighton, 483 U.S. 635,
639 n.2 (1987).
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this District is to stay discovery—as to all defendants—when the defense of qualified immunity
has been raised.”).
The qualified immunity doctrine seeks to strike a balance “between the interests in
vindication of citizens’ constitutional rights and in public officials’ effective performance of their
duties.” Anderson v. Creighton, 483 U.S. 635, 639 (1987); cf. Plummer v. Quinn, No. 07 Civ 6154
(WHP), 2008 U.S. Dist. LEXIS 9951, at *4, 2008 WL 383507, at *2 (S.D.N.Y. Feb. 12, 2008)
(“The purpose of the qualified immunity doctrine is to ‘strike a fair balance between (1) the need
to provide a realistic avenue for vindication of constitutional guarantees, and (2) the need to protect
public officials who are required to exercise their discretion and the related public interest in
encouraging the vigorous exercise of official authority.’” (quoting Jemmott v. Coughlin, 85 F.3d
61, 66 (2d Cir. 1996))).
The qualified immunity doctrine should protect an official from
“broad-reaching” discovery, but not necessarily all discovery. Crawford-El v. Britton, 523 U.S.
574, 593 n.14 (1998); see Martin v. City of Albuquerque, 219 F. Supp. 3d 1081, 1087 (D.N.M.
2015) (“[O]fficials are not protected from all discovery, ‘but only from discovery which is either
avoidable or overly broad.’” (quoting Garrett v. Stratman, 254 F.3d 946, 953 (10th Cir. 2001))).
So, for example, a plaintiff confronted with a summary judgment motion raising a qualified
immunity defense may be entitled to discovery in order to develop facts essential to opposing that
motion and defense. Crawford-El, 523 U.S. at 593 n.14 (“[L]imited discovery may sometimes be
necessary before the district court can resolve a motion for summary judgment based on qualified
immunity[.]”). The general rule barring discovery pending resolution of a qualified immunity
defense is not absolute, however. Government officials are not protected from all discovery, “but
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only from discovery which is either avoidable or overly broad.” Garrett, 254 F.3d at 953 (internal
quotation marks omitted). However, this exception “is not a license for a fishing expedition.”
Lewis v. City of Fort Collins, 903 F.2d 752, 759 (10th Cir. 1990). “It is insufficient for the party
opposing the [stay] to merely assert that additional discovery is required to demonstrate a factual
dispute or that evidence supporting a party’s allegation is in the opposing party’s hands.” Id.
(internal quotation marks omitted); see also Torres v. Madrid, 16-cv-1163 LF/KK, [Doc. 40] at 3
(D.N.M. June 1, 2017) (rejecting motion for limited discovery to take two depositions because the
plaintiff “does not even attempt to demonstrate how the discovery ‘will enable [her] to rebut
[defendants’] showing of objective reasonableness’ in their Motion to Dismiss.”).
Analysis
Plaintiff does not seek discovery in order to adequately respond to Defendant Lacey’s
qualified immunity motion. Indeed, no discovery is necessary to resolve a motion that merely
“tests the legal sufficiency of a complaint.” Plaintiff nevertheless asks the Court to permit limited
discovery in the interest of fairness. Plaintiff maintains that the discovery he seeks is essential to
providing him a “realistic avenue for vindication of constitutional guarantees,” such that it
outweighs the interests animating the qualified immunity doctrine in this case. See [Doc. 30] at 3
(citing Plummer, 2008 WL 383507, at *2).
Under the very narrow and specific circumstances here, the Court agrees with Plaintiff and
will order the County to answer the one interrogatory at issue:
Identify and explain the role of any person other than Kenneth Lacey
who was tasked with monitoring alpha pod during the incident.
(defined above).
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[Doc. 30] at 1 (quoting the interrogatory at issue).
In making this ruling, the Court has weighed Plaintiff’s interest in obtaining a response to
the interrogatory; it appears to be Plaintiff’s sole avenue for discovering the identity of the proper
defendant(s). That is, without a response to this one interrogatory, when the statute of limitations
passes, Plaintiff may be forever barred from attempting to vindicate his constitutional rights.
Likewise, the Court has considered how ordering the County to respond to the one interrogatory
may burden Defendant Lacey’s ability to effectively perform his duties as a corrections officer and
whether that burden might impinge on his ability to vigorously exercise his official authority.
Responding to this one interrogatory is the only discovery the Court will permit at this
time. It is extremely limited. It is very narrowly tailored to Plaintiff’s important interest. The
Court notes that this one interrogatory is propounded on the County and not on Defendant Lacey.
The County has neither a qualified immunity defense nor any pending dispositive motion.
Responding to this one interrogatory will impose virtually no burden on the County and, more
importantly, will impose virtually no burden on Defendant Lacey.
Moreover, Plaintiff has been diligent. With the statute of limitations in mind, Plaintiff
attempted to discover the identity of the proper party or parties at the earliest opportunity. He did
not wait to seek the names of the potential defendants. His interrogatory is no eleventh-hour
surprise.
In this case, the Court finds that Plaintiff’s interest in obtaining a response to one
interrogatory outweighs Defendant Lacey’s and the public’s interest in staying such response until
Judge Fouratt has ruled on Defendant Lacey’s Motion to Dismiss based on qualified immunity.
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Under the specific circumstances here, there is little, if any, risk that Defendant Lacey’s ability to
carry out his official duties will be affected by the County’s responding to the one interrogatory at
issue. And without that response, there is serious and significant risk that Plaintiff would forever
lose his ability to identify and add the proper defendant(s), i.e., to vindicate his important
constitutional rights.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion for Limited Discovery [Doc. 30] is GRANTED.
Defendant Board of County
Commissioners of Curry County must respond to the interrogatory no later than November 7,
2018.
IT IS SO ORDERED.
_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
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