Abdulrazzak v. Kaemingk et al
Filing
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ORDER denying 42 MOTION for Sanctions filed by Haider Salah Abdulrazzak, 37 denying MOTION to Supplement (subpoena) filed by Haider Salah Abdulrazzak, 35 denying MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Haider Salah Abdulrazzak, 28 denying as moot MOTION for Discovery filed by Haider Salah Abdulrazzak, 29 granting MOTION for Protective Order filed by Robert Berthelson, Joseph Siemonsma, Dusti Werner. Defendants' motion for summary judgment based on qualified immunity is due by February 28, 2018. Signed by U.S. District Judge Karen E. Schreier on 12/15/17. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
HAIDER SALAH ABDULRAZZAK,
4:17-CV-04058-KES
Plaintiff,
vs.
J.C. SMITH, DUSTI WERNER, JUSHUA
J. KAUFMAN, F/N/U BERTSCH, and
JOHN DOE 2,
ORDER
Defendants.
Defendants move the court to enter a protective order. Docket 29. Under
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,
Federal Practice and Procedure § 2040 (3d ed. 2010). 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 Secs., Inc., 348 F.3d 704, 713 (8th Cir. 2003)); see also Maune
v. Int'l Bhd. of Elec. Workers, Local No. 1, Health & Welfare Fund, 83 F.3d 959,
963 (8th Cir. 1996) (upholding the district court's granting of a party's request to
stay discovery). “[T]he driving force behind creation of the qualified immunity
doctrine was a desire to insure that insubstantial claims against government
officials [will] be resolved prior to discovery.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). Because the qualified immunity issue may be dispositive, the court
grants defendants’ motion to stay discovery.
Plaintiff moves for discovery. Docket 28. Because discovery is stayed, the
court denies as moot plaintiff’s motion for discovery. Defendants should be
aware, however, that after litigation has commenced, they have an obligation to
preserve the evidence relevant to this litigation and not destroy any such
evidence. Failure to preserve the evidence in defendants’ custody may result in
sanctions being imposed.
Plaintiff also moves for a temporary restraining order and injunction.
Dockets 35 and 37. The burden is on the moving party to establish the need for
a preliminary injunction. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981). In determining whether to grant a preliminary injunction,
the court is to consider: (1) the probability of the movant’s success on the merits;
(2) the threat of irreparable harm; (3) the balance between this harm and the
injury that granting the injunction will inflict on other interested parties; and (4)
whether the issuance of the preliminary injunction is in the public interest. Id.
Plaintiff contends that a temporary restraining order/preliminary injunction is
necessary because defendants destroyed evidence and deliberately sat on or
tampered with his legal mail. If defendants did intentionally destroy evidence,
that matter can be addressed through an adverse inference instruction.
Furthermore, defendants have been warned by the court that they have an
affirmative duty to preserve all evidence regarding this claim. Additionally,
plaintiff has not provided any evidence, other than his accusations, that his mail
was tampered with. At this stage of the proceedings, plaintiff has not made an
adequate showing that he is likely to succeed on the merits or that he will be
irreparably harmed.
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Plaintiff also moves this court to impose sanctions against defendants.
Docket 42. Defendants have not responded to this motion. Plaintiff alleges that
defendants destroyed the audio recording of his preliminary hearing. Because
the audio recording of a preliminary hearing is usually in the custody of the
Clerk of Courts instead of the above-named defendants, the court denies the
motion for sanctions. Because it has not been shown by plaintiff that these
defendants had possession of the audio recording of the preliminary hearing, the
motion for sanctions is denied. If plaintiff has some evidence that the audio
recording was in the possession of these defendants, plaintiff can file a new
motion for sanctions and the court will reconsider its ruling.
Thus, it is ORDERED that
1. Defendants’ motion for a protective order (Docket 29) is granted.
Defendants’ motion for summary judgment based on qualified
immunity is due by February 28, 2018.
2. Plaintiff’s motion for discovery (Docket 28) is denied as moot.
3. Plaintiff’s motion for a temporary restraining order and injunction
(dockets 35 and 37) is denied.
4. Plaintiff’s motion for sanctions (Docket 42) is denied.
Dated December 15, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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