Vice v. Kaemingk et al

Filing 51

ORDER granting 46 Motion to introduce evidence ; granting 48 Motion for Protective Order. Signed by U.S. District Judge Karen E. Schreier on 7/10/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DERECK VICE,
a/k/a Dereck Vice,
a/k/a D. Vice,

4:16-CV-04127-KES

Plaintiff,
vs.
DR. MARY CARPENTER, LT. FITZU,
C/O BOYSEN, C/O ROBERT KIRVIN,
PA TAMMY TOP, DR. JOE HANVEY,
SGT. HERMANN, and CORRECTIONAL
OFFICER STOYNOV,

ORDER GRANTING MOTION
TO INTRODUCE EVIDENCE
AND GRANTING MOTION
FOR PROTECTIVE ORDER

Defendants.
Plaintiff, Dereck Vice, an inmate at the South Dakota State Penitentiary,
filed a pro se lawsuit under 42 U.S.C. § 1983. Vice now moves to introduce
evidence into the record, and defendants move for a protective order staying
discovery until the court determines the issue of qualified immunity.
Vice filed a motion to enter evidence consisting of 109 pages of
documents. Docket 46. This motion is granted. The court will consider these
documents as an attachment to the complaint.
Defendants move the court to enter a protective order. Pursuant to
Rule 26(c), “the court has discretion to stay discovery on other issues until the
critical issue has been decided.” 8A Charles Alan Wright, Arthur R. Miller, and
Richard L. Marcus, Federal Practice and Procedure § 2040 (3d ed.). A stay of

discovery is within the district court’s discretion and is reviewed by the
appellate court for an abuse of that discretion. Steinbuch v. Cutler, 518 F.3d
580, 588 (8th Cir. 2008) (citing Lakin v. Prudential Sec., Inc., 348 F.3d 704,
713 (8th Cir. 2003)); see also Maune v. Int'l Bhd. of Elec. Workers, 83 F.3d 959,
963 (8th Cir. 1996) (upholding the district court's granting of a party's request
to stay discovery). Because the qualified immunity issue may be dispositive,
the court grants defendants’ motion to stay discovery.
Vice argues that the court should not grant the motion. He alleges that
defendants lied in their motion for protective order and are merely trying to
keep the court from considering necessary evidence. Docket 50 at 1-2. Vice
provides as attachments a portion of defendants’ motion stating that there is
“nothing in the record to reflect that Vice is currently in need of back
surgery[,]” and medical correspondence stating that he is scheduled to have
back surgery. Docket 50-1. While Vice may be correct, it is immaterial. At this
point, the qualified immunity issue may be dispositive, and defendants are
therefore entitled to a stay of discovery. Also, defendants’ argument is
inappropriate at this time because it is reasonable for there to be nothing in
the record before Vice has conducted discovery. Vice may raise his argument
in response to defendants’ motion for summary judgment based on qualified
immunity, but those arguments do not concern defendants’ entitlement to a
stay of discovery.

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Thus, it is ORDERED
1. Vice’s motion to introduce evidence (Docket 46) is granted.
2. Defendants’ motion for protective order (Docket 48) is granted.
Discovery will be stayed until the court determines the issue of
qualified immunity. If summary judgment is denied, the stay on
discovery will be lifted.
3. Defendants shall file their motion for summary judgment by
July 31, 2017.
Dated July 10, 2017
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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