Ross v. Carpenter

Filing 23

ORDER denying 14 Motion to Stay Discovery and for Protective Order. Signed by U.S. District Judge Roberto A. Lange on 01/26/2016. (LH)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

3:15-CV-03013-RAL

TRAVIS ROSS,
Plaintiff,

ORDER DENYING DEFENDANT'S
MOTION TO STAY DISCOVERY AND
PROTECTIVE ORDER

vs.
DR. MARY CARPENTER, in her individual
and official capacities,
Defendant.

I. INTRODUCTION

Plaintiff, Travis Ross ("Ross"), filed this § 1983 action against Dr. Mary Carpenter ("Dr.
Carpenter") alleging that she was deliberately indifferent to his serious medical needs in
violation of his rights under the Eighth Amendment. Doc. 1. This Court screened Ross's claim
pursuant to 28 U.S.C. § 1915(e)(2)(B), determined his claim was sufficiently pleaded, and
entered an Order Directing Service of Complaint. Doc. 6. Dr. Carpenter then filed a Motion to
Stay Discovery and for Protective Order until the issue of qualified immunity is resolved. 1 Doc.
14. Ross opposes staying discovery. Doc. 16. For the reasons explained below, Dr. Carpenter's
motion to stay discovery is denied and limited discovery is allowed.

II. FACTS ALLEGED IN COMPLAINT 2

1

Dr. Carpenter filed a motion "asking that the doctrine of qualified immunity and Eleventh
Amendment immunity be applied." Doc. 18; Doc. 19 at 1.
2
When evaluating whether pretrial discovery should be allowed when a defendant asserts a
qualified immunity defense, the Court must assume facts pleaded in Ross' s Complaint to be true.
Gainor v. Rogers, 973 F.2d 1379, 1387 (8th Cir. 1992) (citing Mitchell v. Forsyth, 472 U.S. 511,
528 (1985)).
1

Dr. Carpenter is the Director of Prison Health Care at the Mike Durfee State Prison where
Ross is currently incarcerated.

Doc. 1. During Ross's arrest on the charges leading to his

conviction, Ross was apparently shot four times, including once in the abdomen. Doc. 1 at 1-2.
His injury required various medical procedures, including "a [laparotomy] with segmental colon
resection and proximal colostomy." Doc. 1 at 2. Ross claims that the doctors in Rapid City who
performed these procedures "informed him that after the injury had healed, a process called [a]
colostomy takedown should be performed to prevent any permanent loss of his normal rectal
functions." Doc. 1 at 2.
On February 3, 2014, Ross was seen by Dr. Ryan Manson ("Dr. Manson"), a prison
health care provider at Mike Durfee State Prison. Doc. 1 at 2. Ross asserts that Dr. Manson
reviewed Ross's medical records and was aware that Rapid City doctors had previously informed
Ross that he would need to see a gastroenterologist to be evaluated for a colostomy takedown.
Doc. 1 at 2; Doc. 1-1 at 1. Considering that it had been approximately eight months since Ross' s
colostomy, Dr. Manson requested that Ross receive such a consultation on February 4, 2015.
Doc. 1 at 2; Doc. 1-1 at 1-2. Dr. Carpenter denied Dr. Manson's request the next day deeming a
colostomy takedown to be an "elective procedure." Doc. 1 at 2; Doc. 1-1 at 2. Ross contends
that Dr. Carpenter never saw him before the denial was made and alleges that Dr. Carpenter was
deliberately indifferent to his serious medical needs when she denied Dr. Manson's request.
Doc. 1 at 1-2. Ross unsuccessfully sought informal and administrative relief. Doc. 1 at 2-3;
Doc. 1-1 at 2-6.
Ross claims that the colostomy takedown is necessary to improve his quality of life and
that he needs to see a specialist. Doc. 1 at 3. He maintains that he cannot regain a normal life or
bodily functions without this procedure. Doc. 1 at 3. In relief, Ross requests this Court to order

2

an appointment for him to see a gastroenterologist and demands $300,000 in compensatory and
punitive damages and other equity relief the courts finds appropriate. Doc. 1 at 3-4.
After this Court entered an Order Directing Service of Complaint, Doc. 6, Dr. Carpenter
filed a motion to stay discovery until the issue of qualified immunity is resolved, Doc. 14. Dr.
Carpenter also seeks an order from this Court protecting her from having to respond to alreadyserved

int~rrogatories.

Doc. 14; Doc. 15 at 2; Doc. 15-1. Ross opposes staying discovery.

Doc. 16.

III. DISCUSSION
Cases from the Supreme Court of the United States stress that "[q]ualified immunity is
an immunity from suit, not simply from liability," Janis v. Biesheuvel, 428 F.3d 795, 800 (8th
Cir. 2005) (citing Mitchell, 472 U.S. at 526), and thus the immunity defense should be decided
as early in the case as possible, see Harlow v. Fitzgerald, 457 U.S. 800, 816-19 (1982). The
Supreme Court's qualified immunity decisions seek to protect officials entitled to qualified
immunity not only from the burdens of trial, but also from pretrial discovery. See, e.g., id. at
817-19; Mitchell, 472 U.S. at 526. In Harlow, the Supreme Court stressed that one of the
reasons for defining qualified immunity in essentially objective terms was to protect officials
sued from "the burdens of broad-reaching discovery." 457 U.S. at 818. The Supreme Court
stated that until the threshold issue of whether the law was clearly established is resolved,
"discovery should not be allowed." Id.; see also Mitchell, 472 U.S. at 526 (providing that a
defendant is entitled to dismissal under qualified immunity unless plaintiff alleges a violation of
clearly established law because without such a requirement pretrial discovery "can be peculiarly
disruptive of effective government" (citation omitted)). At the same time, however, Supreme
Court decisions have acknowledged that there are limited situations in which pretrial discovery
should be allowed on factual issues that are likely to impact the qualified immunity defense.
3

See, e.g., Mitchell, 472 U.S. at 526 ("Even if the plaintiffs complaint adequately alleges the
commission of acts that violated clearly established law, the defendant is entitled to summary
judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether
the defendant in fact committed those acts.").
The Supreme Court addressed discovery prior to consideration of a qualified immunity
defense in Anderson v. Creighton, 483 U.S. 635 (1985). The Court in Anderson gave lower
courts a sequential analysis to follow:
[I]t should first be determined whether the actions the [plaintiff] allege[ s] [the
defendant] to have taken are actions that a reasonable [official] could have
believed lawful. If they are, then [the defendant] is entitled to dismissal prior to
discovery. If they are not, and if the actions [the defendant] claims he took are
different from those the [plaintiff] allege[s] (and are actions that a reasonable
[official] could have believed lawful), then discovery may be necessary before
[the defendant's] motion for summary judgment on qualified immunity grounds
can be resolved.
Id. at 646 n.6 (internal citation omitted). "[T]his analysis is to be done without any attempt to
verify the correctness of plaintiffs complaint." Gainor, 973 F.2d at 1387 (citing Mitchell, 472
U.S. at 528). The district court has "broad discretion" and "many options" in managing this
discovery process.

Crawford-El v. Britton, 523 U.S. 574, 598-601 (1998). If discovery is

allowed, "any such discovery should be tailored specifically to the question of [the defendant's]
qualified immunity" such as limiting discovery to what facts the defendant had in his possession
at the time of the alleged constitutional violation. Anderson, 483 U.S. at 646 n.6; Gainor, 973
F.2d at 1387.
In this case, Ross' s allegations, if taken as true, support a claim that a reasonable prison
official would or should have known that denying Dr. Manson's request was a violation of
clearly established law.

Although inmates do not have a constitutional right to receive a

particular treatment, the law in February of 2014 provided fair warning that it is unlawful for a
4

prison doctor to deny or delay medical treatment to an inmate if the prison doctor knew or should
have known that such a denial or delay could create an excessive risk to the inmate's health.
See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-06 (1976); Pietrafeso v. Lawrence Cty., S.D., 452
F.3d 978, 983 (8th Cir. 2006) (quoting Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995));
Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (quoting Long v. Nix, 86 F.3d 761,
765 (8th Cir. 1996)). An elective procedure that is medically necessary can qualify as a serious
medical need under a deliberate indifference analysis. See Roe v. Crawford, 514 F.3d 789, 798801 (8th Cir. 2008); see also Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989), as
modified on reh'g (Oct. 27, 1989). Because there are factual questions regarding what facts Dr.
Carpenter had in her possession at the time she denied Dr. Manson's request-information that
perhaps only Dr. Carpenter would know--discovery is allowed prior to this Court's ruling on
summary judgment.

See Lovelace v. Delo, 47 F.3d 286, 287 (8th Cir. 1995) (per curiam)

(finding that limited discovery was appropriate where plaintiff stated a claim of violation of
clearly established law and the parties disagreed as to what actions the law enforcement officers
took).
As directed by the Supreme Court, however, initial discovery should be tailored to the
question of Dr. Carpenter's qualified immunity. Anderson, 483 U.S. at 646 n.6. Ross already
has served twenty-five interrogatories on Dr. Carpenter. Doc. 15-1. Ross's requests are not
peculiarly disruptive or burdensome to the government, nor are they overly broad.

Cf.

Hughbanks v. Dooley, No. Civ. 10-4064-KES, 2011 WL 3502484, at *1 (D.S.D. Aug. 10, 2011)
(staying discovery subject to qualified immunity determination on summary judgment where
plaintiff submitted twenty-four separate requests for production of documents, sent
interrogatories to the six-named defendants, and filed numerous other motions, including six

5

motions for preliminary restraining orders); Smith v. Woodward, No. Civ. 10-4053-KES, 2010
WL 3937139, at *1 (D.S.D. Oct. 4, 2010) (staying discovery until qualified immunity is resolved
on summary judgment because plaintiffs 296 requests "demonstrate that the Eighth Circuit's
concern with the burden of discovery on public officials is well founded"). But a majority of
Ross's interrogatories are irrelevant to the issue of qualified immunity. 3 See 15-1 at 2-3. Thus,
this Court directs that Dr. Carpenter answer only those interrogatories that are relevant to
qualified immunity.

III. CONCLUSION
Therefore, it is hereby
ORDERED that Dr. Carpenter's Motion to Stay Discovery and for Protective Order, Doc.
14, is denied. It is further
ORDERED that Dr. Carpenter answer Plaintiffs Interrogatories (First Set) dated October
19, 2015, Doc. 15-1, numbers one through seven (1-7) and eleven through twenty-one (11-21)
within twenty-eight (28) days of the date of this Court's order. It is finally
ORDERED that Ross has until twenty-one (21) days after receipt of the discovery
responses to file his response brief.

DATED this 26th day of January, 2016.
BY THE COURT:

UNITED STATES DISTRICT JUDGE
3

For example, Ross asked Dr. Carpenter whether the State of South Dakota is a "territory" of the
United States and "[h]ow much clearer" does his claim need to be to state a claim. Doc. 15-1 at
2-3.
6