Owen v. Young et al

Filing 42

ORDER granting 35 Motion for Protective Order; denying 38 Motion to Strike; denying 40 Motion for Discovery. Signed by US Magistrate Judge Veronica L. Duffy on 10/11/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LANCE G. OWEN,

4:15-CV-04087-KES
Plaintiff,

ORDER ON MOTIONS:
DOCKET NO. 35—PROTECTIVE
ORDER

vs.
DARIN YOUNG, TROY PONTO, JAN
WAGNER, ART ALLCOCK, AW AT
SDSP;

DOCKET NO. 38—TO STRIKE
DOCKET NO. 40—FOR DISCOVERY
CONDITIONS

Defendants.
INTRODUCTION
This matter is before the court on plaintiff Lance G. Owen’s pro se
amended complaint pursuant to 42 U.S.C. § 1983. See Docket No. 9.
Currently pending are three motions. Defendants have moved to stay discovery
and for a protective order pending the filing of a motion on qualified immunity.
See Docket No. 35. Mr. Owen moved to strike defendants’ motion. See Docket
No. 38. Mr. Owen then moved for conditions for discovery motions. See
Docket No. 40. All of these motions have been referred to this magistrate judge
for determination pursuant to 28 U.S.C. § 636(b)(1)(A) & (B) and the October
16, 2014, standing order of the Honorable Karen E. Schreier, district judge.

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FACTS
Mr. Owen, in his amended complaint, asserts that the South Dakota
Department of Corrections (DOC) is taking more money out of his account for
Prison Litigation Reform Act (PLRA) filing fees than what Mr. Owen owes under
the PLRA. See Docket No. 9. He filed a motion for summary judgment,
attaching his prison account statements for May and June of 2016. See
Docket No. 31. Those statements showed that $352 had been taken from
Mr. Owen’s prison account to pay PLRA filing fees. See Docket Nos. 31-1 and
31-2. The filing fee for a single civil case in federal court is $350. See 28
U.S.C. § 1914.
However, what Mr. Owen failed to take into consideration is that he had
filed two civil suits in this court: the instant one and another one previously in
2013 on which PLRA filing fee payments were still being made. This court
issued a report recommending that Mr. Owen’s summary judgment be denied
because he had not shown that the DOC had taken more than the $700 he
owed collectively in filing fees on his two federal civil cases.
Defendants now seek to have this case stayed while they prepare and file
a dispositive motion on the issue of qualified immunity. See Docket No. 35.
Mr. Owen moves to strike defendants’ motion because he had previously filed a
motion for summary judgment. See Docket No. 38. At the same time as he
filed his motion to strike, Mr. Owen filed a motion seeking conditions for
discovery motions. See Docket No. 40.

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DISCUSSION
In order to show a prima facie case under 42 U.S.C. § 1983, Mr. Owen
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)).
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).

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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, 571
U.S. ___, 134 S. Ct. 3, 5 (2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131
S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))).
“ ‘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, 502 U.S. at 229).
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
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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.
The defendants’ motion for a protective order and to stay discovery in
this case until a qualified immunity motion can be placed before the court is
well placed. Defendants are entitled to assert the defense of qualified immunity
before subjecting themselves to further discovery or motions practice.
Accordingly, the court will grant defendants’ motion. Having so ordered, the
court notes two things. Defendants should have already filed such a motion—
they have had three months since they filed their motion seeking a stay in
which to do so. Defendants are ordered to get their motion before the court
sooner rather than later. Also, the court notes the issue raised in Mr. Owen’s
amended complaint appears extremely simple and straight forward. A brief
accounting by defendants would settle the matter.
Mr. Owen’s motion to strike will be denied. The main reason he seeks to
strike defendants’ motion for protective order is that he had a pending
summary judgment motion. The court has now recommended a resolution of
that motion. Therefore, the reason Mr. Owen asserts for striking defendants’
motion no longer exists. Similarly, because the court has granted defendants’
motion, discovery is now stayed. There is no reason to issue conditions for
discovery as Mr. Owen seeks in his second motion.
CONCLUSION
Based on the foregoing and the report and recommendation being filed
this same day in this case, it is hereby
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ORDERED that defendants’ motion for a protective order and to stay
discovery [Docket No. 35] is granted. Discovery in this case is hereby stayed
and defendants are directed to file their qualified immunity motion
immediately. It is further
ORDERED that plaintiff Lance Owen’s motion to strike [Docket No. 38] is
denied. It is further
ORDERED that plaintiff Lance Owen’s motion for discovery conditions
[Docket No. 40] is denied.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in the
waiver of the right to appeal questions of fact. Id. Objections must be timely
and specific in order to require review by the district court. Thompson v. Nix,
897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).
DATED this 11th day of October, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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