Tripp v. Allcock et al

Filing 25

ORDER striking 20 Second Amended Complaint; granting 23 Motion for Protective Order. Discovery will be stayed until the court determines the issue of qualified immunity. Defendants shall file their motion for summary judgment by December 31, 2017. Signed by U.S. District Judge Karen E. Schreier on 10/19/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN CHRISTOPHER MICHEAL
TRIPP,

4:17-CV-04076-KES

Plaintiff,
vs.
ARTHUR ALLCOCK, Associate Warden,
South Dakota State Penitentiary, in his
individual and official capacity;
JENNIFER DRESKE, Deputy Warden,
South Dakota State Penitentiary, in her
individual and official capacity;
EUGENE REGIER, Doctor, South
Dakota State Penitentiary, in his
individual and official capacity;
ROBERT VESTLIE, Senior Correctional
Officer, South Dakota State
Penitentiary, in his individual and
official capacity; and TAMMY TOP,
Certified Nurse Practitioner, South
Dakota State Penitentiary, in her
individual and official capacity;

ORDER STRIKING SECOND
AMENDED COMPLAINT
AND GRANTING MOTION
FOR PROTECTIVE ORDER

Defendants.

Plaintiff, Kevin Christopher Micheal Tripp, an inmate at the South
Dakota State Penitentiary, filed a pro se lawsuit under 42 U.S.C. § 1983. Tripp
filed a second amended complaint and defendants move for a protective order
staying discovery until the court determines the issue of qualified immunity.

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a party may
amend its pleading a second time “only with the opposing party’s written
consent or the court’s leave.” Because Tripp did not receive the opposing
party’s written consent or the court’s leave, his second amended complaint is
stricken from the record.
Defendants move the court to enter a protective order. 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, 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.
Thus, it is ORDERED
1. Tripp’s Second Amended Complaint (Docket 20) is stricken from
the record.
2. Defendants’ motion for protective order (Docket 23) is granted.
Discovery will be stayed until the court determines the issue of
qualified immunity. If summary judgment is denied, the stay of
discovery will be lifted.
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3. Defendants shall file their motion for summary judgment by
December 31, 2017.
Dated October 19, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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