The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ELLIS RAY HICKS CIVIL ACTION
VERSUS 19-108-SDD-RLB
LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS, ET AL.
ORDER
Before the Court is Ellis Hicks’ (“Plaintiff”) Motion to Compel. (R. Doc. 92). The motion
is opposed. (R. Doc. 96). Plaintiff filed a reply. (R. Doc. 106).
I. Background
Plaintiff initiated this action on December 10, 2018 by filing of a “Petition for
Negligence, False Imprisonment, and Violation of Constitutional Rights” (“Petition”) in state
court against the State of Louisiana through the Louisiana Department of Public Safety and
Corrections (“DOC”), James LeBlanc (“LeBlanc), and Terry Lawson (“Lawson”) (R. Doc. 1-2).
Plaintiff seeks recovery pursuant to 42 U.S.C. § 1983 and Louisiana state law for the alleged
unlawful detainment of him for sixty days beyond the date of his legal release. (R. Doc. 1-2 at 3).
On February 20, 2019, the DOC, LeBlanc, and Lawson filed a Notice of Removal asserting that
this Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. (R. Doc. 1).
On May 17, 2019, Plaintiff propounded his first set of Request for Production of
Documents on the DOC, LeBlanc, and Lawson. (R. Doc. 92-4). After receiving no response,
Plaintiff filed a Motion to Compel discovery responses on August 1, 2019. (R. Doc. 20).
On August 8, 2019, the DOC, LeBlanc, and Lawson filed a Motion to Dismiss Pursuant
to Federal Rule of Civil Procedure 12(c) asserting that: (1) Plaintiff’s claims for monetary
damages against the DOC, LeBlanc, and Lawson in their official capacities were barred by
Eleventh Amendment sovereign immunity; (2) Plaintiff’s claims were barred under Heck v.
Humphrey, 512 U.S. 477 (1994); and (3) LeBlanc and Lawson were entitled to qualified
immunity. (R. Doc. 22). The Court stayed discovery until resolution of the motion to dismiss
considering LeBlanc and Lawson’s qualified immunity defense. (R. Doc. 33).
On January 27, 2020, the Court granted in part and denied in part the motion to dismiss.
(R. Doc. 47). In particular, the Court dismissed, with prejudice, Plaintiff’s claims for monetary
damages against the DOC, LeBlanc, and Lawson, in their official capacity but found no grounds
to dismiss the other claims under Heck or the qualified immunity doctrine. (R. Doc. 47 at 21).
LeBlanc and Lawson (hereinafter referred to as the “Original Defendants”) appealed the
Court’s denial of qualified immunity, and the above-captioned matter was stayed and
administratively closed pending resolution of the appeal on May 21, 2020. (R. Doc. 50; R. Doc.
55).
On November 12, 2020, the Fifth Circuit issued a Mandate in which it concluded that the
Court properly denied qualified immunity for Lawson but not for LeBlanc. (R. Doc. 56 at 5). The
Fifth Circuit held that LeBlanc is entitled to qualified immunity with respect to Plaintiff’s claims
under the Fourteenth Amendment (Count 3) and First Amendment (Count 5). (R. Doc. 56 at 5).
The above-captioned case was reopened on December 3, 2020. (R. Doc. 58). Thereafter,
the Court entered a Scheduling Order setting, among other things, October 1, 2021 as the
deadline for filing discovery motions and completing all discovery except experts. (R. Doc. 72).
On January 15, 2021, the Original Defendants responded to Plaintiff’s first set of
Requests for Production of Documents. (R. Doc. 92-5). Pertinently, the Original Defendants
objected to Request for Production No. 9, which requested “[a]ll memoranda sent to records
analysis regarding sentencing calculation,” by stating:
Objection vague, overbroad, unduly burdensome, not reasonably calculated to
lead to the discovery of admissible evidence, and relevance. Louisiana’s
sentencing laws change routinely and memoranda are sent to update staff on the
change to sentencing laws. Plaintiff’s request is not limited in time or topic and,
therefore, is overbroad, unduly burdensome, and not reasonably calculated to lead
to the discovery of relevant, admissible evidence.
(R. Doc. 92-5 at 5).
On March 12, 2021, Plaintiff agreed to limit the time of the request “to all sentencing
memoranda sent between January 1, 2017 to the present,” and the scope to “sentencing
memoranda regarding credit for time served, Boddye, or Article 880.”1 (R. Doc. 92-6 at 2).
On March 16, 2021, Plaintiff propounded Request for Production No. 17, which
requested that the Original Defendants produce the personnel files for Lawson, as well Tracy
Dibenedetto, Angela Griffin, and Sally Gryder (the “Additional Defendants,” together with the
Original Defendants are hereinafter referred to as “Defendants”). (R. Doc. 92-8).
On March 18, 2021, the Original Defendants objected to Request for Production No. 17
on the grounds that Plaintiff’s request is overly broad, irrelevant, and not sufficiently
particularized to overcome the privacy rights of the individuals. (R. Doc. 92-9 at 2).
On March 23, 2021, Plaintiff followed up with the Original Defendants regarding their
discovery responses, and he informed them that he would be filing a motion to amend to add the
Additional Defendants. (R. Doc. 92-7 at 2). In response, the Original Defendants stated that they
were “done with discovery until” the Additional Defendants’ “qualified immunity defenses were
resolved.” (R. Doc. 92-7 at 2).
1 Boddye v. LA. Dept. of Corrections, 175 So.3d 437, 440 (La. App. 1 Cir. 6/26/15) (explaining that “Article 880 of
the Louisiana Code of Criminal Procedure is the statutory authority by which offenders are granted credit for time
served.”).
On May 19, 2021, “in the interest of facilitating a resolution,” Plaintiff agreed to narrow
Request for Production No. 17 to “any documents reflecting performance evaluations, training,
disciplinary action and/or reprimands, and commendations.” (R. Doc. 92-10 at 1).
On May 24, 2021, Plaintiff filed his Second Amended Complaint, which, among other
things, removes DOC as a defendant and names the Additional Defendants as Does 1-3 listed in
the Amended Complaint. (R. Doc. 83).
On June 1, 2021, the Original Defendants submitted supplemental responses to Plaintiff’s
modified versions of Request for Production Nos. 9 and 17. (R. Doc. 92-11). With respect to
Request for Production No. 9, the Original Defendants stated that:
Memoranda sent to Terry Lawson are included in the binders, which are produced
above. Other than the foregoing, the [Original] Defendants’ original response to
Request for Production No. 9 remains unchanged. Plaintiff’s arbitrary limitation
of the request to be from January 1, 2017, to the present does not reasonably
narrow the scope of the request. Events that occurred after Plaintiff was released
from custody are irrelevant to this case.
(R. Doc. 92-11 at 5).
The Original Defendants objected to Request for Production No. 17, on the grounds that
Lawson and the Additional Defendants are entitled to qualified immunity. They further stated
that the request is overly broad, irrelevant, and not sufficiently particularized to overcome the
privacy rights of the individuals. (R. Doc. 92-11 at 3). According to the Original Defendants,
Plaintiff’s request for “training and performance records,” will require a broad intrusion into
Defendants’ personnel files. (R. Doc. 92-11 at 4).
On June 21, 2021, Plaintiff requested mutually agreeable dates for depositions of the
Additional Defendants. (R. Doc. 92-14 at 5). The Additional Defendants responded that they
would not sit for depositions until the Court rules on their qualified immunity defense. (R. Doc.
92-14 at 5). To preserve his right to depose the Additional Defendants, Plaintiff served Notices
and Subpoenas to testify. (R. Doc. 92-16).
Thereafter, the parties engaged in various discussions regarding Plaintiff’s discovery
requests. The parties could not reach an agreement as to the sufficiency of the Original
Defendants’ responses to and the relevancy of Request for Production No. 9, the relevancy of
Request for Production No. 17, or whether the Additional Defendants should sit for depositions.
(R. Doc. 92-12). As a result, Plaintiff filed the instant Motion to Compel. Therein, Plaintiff
requests that the Court compel the Original Defendants to supplement their response to
Plaintiff’s discovery requests and to comply with deposition subpoenas. (R. Doc. 92 at 1). In
sum, the discovery at issue includes:
(1) Request for Production No. 9: All sentencing memoranda sent between January 1,
2017 to the present regarding credit for time served;
(2) Request for Production No. 17: Any documents reflecting performance evaluations,
training, disciplinary action and/or reprimands, and commendations in Defendants’
personnel files; and
(3) Depositions of the Additional Defendants.
On August 25, 2021, the Additional Defendants filed their Motion to Dismiss Plaintiff’s
Second Amended Complaint in which they assert the defense of qualified immunity. (R. Doc.
90). In light of their qualified immunity defense, the Additional Defendants also filed a motion to
stay discovery. (R. Doc. 91). The Court granted the motion to stay on October 6, 2021 and
ordered that the deadlines in the Court’s Scheduling Order be continued until resolution of the
Additional Defendants’ motion to dismiss. (R. Doc. 113).
II. Law and Analysis
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the
discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information by discovery in the action; or (iii)
the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C).
“Once a party moving to compel discovery establishes that the materials and information
it seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon
the party resisting discovery to substantiate its objection.” Wymore v. Nail, No. 14-3493, 2016
WL 1452437, at 1 (W.D. La. Apr. 13, 2016) (citing McLeod, Alexander, Powel, and Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
A. Request for Production No. 9
In support of his motion, Plaintiff argues that all sentencing memoranda that “the DOC
sent to its employees charged with ensuring” Plaintiff’s timely release are relevant to
determining how Plaintiff’s time was computed. (R. Doc. 92-1 at 3). Plaintiff further contends
that memoranda sent after Plaintiff’s release from custody on April 25, 2018 are relevant to his
claim for punitive damages. (R. Doc. 92-1 at 10).
In opposition, Defendants argue that only sentencing memoranda sent to Lawson, alone,
prior to Plaintiff’s release from custody are relevant. (R. Doc. 96 at 4). In particular, the Original
Defendants refuse to produce sentencing memoranda pertaining to the DOC and LeBlanc
because Plaintiff voluntarily dismissed the DOC and the “Fifth Circuit dismissed Count 6 of
Plaintiff’s complaint, regarding training and supervision by” LeBlanc. (R. Doc. 96 at 5).
Nevertheless, Defendants suggest that they have satisfied their obligation by providing
memoranda sent to Lawson.
The central issue of this matter is the miscalculation of Plaintiff’s sentence. Plaintiff
specifically alleges that Lawson refused to include credit for the time Plaintiff served in
Arkansas in the calculation of Plaintiff’s sentence, which resulted in Plaintiff’s over detention.
(R. Doc. 83 at 5). Memoranda pertaining to sentencing calculations that were issued by the DOC
or its Secretary, Defendant LeBlanc, are discoverable. At a minimum, Plaintiff could explore
whether those were received by Defendant Lawson, otherwise reviewed by him, or made
available to him. If they were not, Plaintiff could explore why that is the case, and whether
Defendant Lawson took (or failed to take) certain actions to ascertain whether such memoranda
or guidance existed. Accordingly, memoranda regarding credit for time served are discoverable.
The Court, however, agrees with Original Defendants’ position that sentencing
memoranda sent between January 1, 2017 to present regarding credit for time served is not
reasonably limited in time. Plaintiff summarily states that sentencing memoranda after his
release is relevant to his claim for punitive damages. (R. Doc. 92-1 at 10). Plaintiff does not
present any rationale or caselaw to substantiate such prolonged production of sentencing
memoranda, or otherwise demonstrate why such a search, review and production is not just
relevant but also proportional to the needs of the case under Rule 26(b)(1).
The Court, therefore, holds that the Original Defendants are required to produce all
sentencing memoranda regarding credit for time served sent between January 1, 2017 to April
25, 2018 (the date of Plaintiff’s release), including memoranda sent to or from LeBlanc. To the
extent that the Original Defendants have already produced all documents responsive to this
request, the Court compels them to certify same.
B. Request for Production No. 17 and Depositions of the Additional Defendants
Plaintiff’s Request for Production No. 17 and the deposition subpoenas each require
discovery concerning the Additional Defendants. Plaintiff argues that the Additional Defendants
should be required to sit for depositions on matters unaffected by their qualified immunity
defense. (R. Doc. 92-1 at 7). Plaintiff further suggests that the personnel files of the Additional
Defendants should be produced because Request for Production No. 17 was sent to the Original
Defendants before the Additional Defendants were named as parties. (R. Doc. 92-1 at 7).
Plaintiff’s arguments are meritless.
The Court has already stayed all discovery, as it pertains to the Additional Defendants
pending resolution of the Additional Defendants’ Motion to Dismiss. (R. Doc. 117). This
includes a stay of discovery related Plaintiff’s state law claims, which, as the Court explained,
arise out of a single set of facts that are intertwined with Plaintiff’s constitutional claims. (R.
Doc. 113 at 4).
Moreover, the fact that Request for Production No. 17 was sent prior to the Additional
Defendants being named as parties is not pursuasive. It is not clear how these documents would
even be relevant prior to the Additional Defendants being named. Now that they are and have
raised a defense of qualified immunity, the discoverability of these records depends on how the
district judge resolves that defense at the pleading stage. The Court will not require the Original
Defendants to produce documents concerning individuals who are now parties to the action, and
who have been granted a stay of discovery as result of asserting qualified immunity. To do so
would undermine the benefits and protections of qualified immunity. Backe v. LeBlanc, 691 F.3d
645, 648 (5th Cir. 2012).
Finally, the Court finds it necessary to address Lawson’s suggestion that he is entitled to
the protections of qualified immunity until the Court rules on his (unfiled) Motion for Summary
Judgment. According to Lawson, “clear precedent establishes that defendants continue to benefit
from the protections of the defense even if” they were denied qualified immunity after filing a
motion to dismiss. (R. Doc. 96 at 6) (citing Behrens v. Pelletier, 516 U.S. 299, 309 (1996)).
Behrens does not support Lawson’s proposition. Rather, Behrens rejects the “one-appeal”
rule,2 which prohibits a defendant from appealing an unfavorable qualified immunity ruling on
both a motion to dismiss and motion for summary judgment. In so rejecting, Behrens explains
that a defendant who is denied qualified immunity at the motion to dismiss stage may later assert
the defense after discovery at the summary judgment stage.
More importantly, Behrens explains that “[w]hether or not a later summary judgment
motion is granted, denial of a motion to dismiss is conclusive as to this right.” Behrens, 516 U.S.
at 839-40 (emphasis added). In other words, the denial of a right to qualified immunity at the
motion to dismiss stage is conclusive and final until (1) adequate discovery is conducted and (2)
the defense is raised in a motion for summary judgment. Therefore, contrary to Lawson’s
2 “The question presented in [Behrens] is whether a defendant’s immediate appeal of an unfavorable qualified-
immunity ruling on his motion to dismiss deprives the court of appeals jurisdiction over a second appeal, also based
on qualified immunity, immediately following denial of summary judgment.” Behrens, 516 U.S. at 301.
assertion, the protections of qualified immunity do not remain uninterrupted from the moment it
is first asserted in motion to dismiss until after it is decided upon on summary judgment.
III. Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion to Compel is GRANTED IN PART and
DENIED IN PART. The Original Defendants must produce all non-privileged documents that
responsive to Plaintiff’s Request for Production No. 9 or certify that all responsive documents
have already been produced within 14 days of the date of this Order, or as otherwise agreed
upon by the parties.
IT IS FURTHER ORDERED that Plaintiff’s motion to compel the depositions of the
Additional Defendants and responses to Request for Production No. 17 is DENIED WITHOUT
PREJUDICE to refile after the district court judge issues a ruling on the Additional Defendants’
Motion to Dismiss (R. Doc. 90).
IT IS FURTHER ORDERED that each party shall bear their own costs.
Signed in Baton Rouge, Louisiana, on December 17, 2021.
S
RICHARD L. BOURGEOIS, JR.
U NITED STATES MAGISTRATE JUDGE