Gill v. Dooley et al

Filing 22

ORDER granting 19 Motion for Protective Order. Signed by US Magistrate Judge Veronica L. Duffy on 10/28/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROBBIE DEAN GILL,

4:15-CV-04005-LLP

Plaintiff,
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER

vs.
ROBERT DOOLEY, TAMMY DEJONG,
REBECCA SCHIEFFER, KELLY
SWANSON, GEORGE DEGLMAN,
DENNY KLIMEK, MURIEL NAMIGA,

[DOCKET NO. 19]

Defendants.

INTRODUCTION
Plaintiff Robbie Dean Gill, an inmate at the Mike Durfee State Prison in
Springfield, South Dakota, has filed a pro se civil rights lawsuit pursuant to 42
U.S.C. ' 1983. This matter was referred to this magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(A) and (B) and the October 16, 2014 standing order of
the Honorable Karen E. Schreier, district judge. Defendants now move the
court to stay all discovery pending the filing of a dispositive motion asserting
qualified immunity. See Docket No. 19. Mr. Gill resists. See Docket No. 21.
DISCUSSION
Liberally construed, Mr. Gill’s complaint alleges the defendants have
violated the Eighth Amendment prohibition against cruel and unusual

punishment by failing to give him a particular type of shoes his doctor
prescribed in order to alleviate his foot and ankle pain caused by rheumatoid
arthritis. Mr. Gill alleges the defendants are all aware of the physician’s
prescription for the shoes and of the medical necessity for the shoes, but
nevertheless, and despite their lack of medical training have decided Mr. Gill
does not need the shoes. Mr. Gill asserts he “lives in constant pain and has
trouble walking” because of the inadequate footwear defendants have provided.
In order to show a prima facie case under 42 U.S.C. § 1983, Mr. Gill
must show (1) defendants acted under color or state law and (2) “ ‘the alleged
wrongful conduct deprived him of a constitutionally protected federal right.’ ”
Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (quoting Schmidt v. City of
Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009)). The Eighth Amendment to the
United States Constitution prohibits cruel and unusual punishment. Allard v.
Baldwin, 779 F.3d 768, 771 (8th Cir. 2015). That prohibition includes prison
officials’ deliberate indifference to the medical needs of inmates. Id. That is
because “deliberate indifference to serious medical needs of prisoners
constitutes ‘the unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “This is true whether the
indifference is manifested by prison doctors in their response to the prisoner’s
needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.”
Id. at 104-05.
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Qualified immunity protects government officials from liability and from
having to defend themselves in a civil suit if the conduct of the officials “does
not violate clearly established statutory or constitutional rights.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is immunity from
suit, not just a defense to liability at trial. Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). Therefore, the Supreme Court has “repeatedly stressed the
importance of resolving immunity questions at the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224, 536 (1991).
To determine whether an official may partake of qualified immunity, two
factors must be determined: (1) whether the facts that plaintiff has shown
make out a violation of a constitutional right and (2) whether that
constitutional right was “clearly established” at the time of the official’s acts.
Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court finds that one of the two
elements is not met, the court need not decide the other element, and the court
may address the elements in any order it wishes “in light of the circumstances
of the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Defendants are entitled to qualified immunity if the answer to either of the
Saucier prongs is “no.”
“Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments,” and “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’ ” Stanton v. Sims, ___
U.S. ___, 134 S. Ct. 3, 5 (2013) (quoting Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.
Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))).
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“ ‘We do not require a case directly on point’ before concluding that the law is
clearly established, ‘but existing precedent must have placed the statutory or
constitutional question beyond debate.’ ” Stanton, 134 S. Ct. at 5. “ ‘Officials
are not liable for bad guesses in gray areas; they are liable for transgressing
bright lines.’ ” Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007)
(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
The Supreme Court has stated that “if the defendant does plead the
[qualified] immunity defense, the district court should resolve that threshold
question before permitting discovery.” Crawford-El v. Britton, 523 U.S. 574,
598 (1998) (citing Harlow, 457 U.S. at 818). Only if the plaintiff’s claims
survive a dispositive motion on the issue of qualified immunity will the plaintiff
“be entitled to some discovery.” Id. Even then, the Court has pointed out that
FED. R. CIV. P. 26 “vests the trial judge with broad discretion to tailor discovery
narrowly and to dictate the sequence of discovery.” Id. Such discretion
includes the ability to establish limits on the number of depositions and
interrogatories, to limit the length of depositions, to limit the number of
requests to admit, to bar discovery on certain subjects, and to limit the time,
place, and manner of discovery as well as its timing and sequence. Id.
Here, defendants have asserted the affirmative defense of qualified
immunity. See Docket No. 17. Based on the above law, the court hereby
ORDERS that defendant’s motion to for a protective order [Docket No. 19]
is granted. All discovery is hereby stayed until further order of the court.

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Defendants shall file their motion based on the qualified immunity defense as
soon as possible, but no later than November 30, 2015. It is further
ORDERED that defendants shall immediately provide to Mr. Gill any and
all medical records, including kites, grievances, and responses thereto,
regarding medical care pertaining to himself during his period of incarceration
with defendants. This order is intended to cover all medical records for Mr. Gill
for the period indicated, even if those records are in the custody of medical
providers outside the South Dakota state penitentiary system. If necessary,
Mr. Gill shall sign a release allowing all his medical providers to disclose his
medical records to defendants in order to effectuate this order.
DATED this 28th day of October, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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