Opinion

Brown v. Dunn

Court
District Court, M.D. Alabama
Filed
Oct 4, 2021
Cited by
0 cases
Authority
More cited than 16.5%

The opinion

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JENNIFER BROWN, )

Administratrix for the )

Estate of Larry Brown, )

deceased, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:21cv440-MHT

) (WO)

JEFFERSON S. DUNN, Alabama )

Prison Commissioner; )

et al., )

)

Defendants. )

OPINION AND ORDER

This case comes before the court on plaintiff

Jennifer Brown’s renewed motion for leave to conduct

expedited discovery. The motion will be denied.

Brown, as the administrator of the estate of

decedent Larry Brown, brought claims against defendants

Jefferson Dunn, Patricia Jones, and David Lamar under

42 U.S.C. § 1983 and Alabama law for their alleged

roles in the decedent’s death while incarcerated at the

Bullock Correctional Facility. Administrator Brown

brought a motion for leave to conduct expedited

discovery, pursuant to Federal Rules of Civil Procedure

26(d)(1) and 30(a)(2)(iii). Pl.’s Mot. for Leave

to Conduct Expedited Discovery (Doc. 10). That motion

was denied. Brown now renews her motion for leave to

conduct expedited discovery and requests that the court

(1) permit her to depose ten identified inmates at the

Correctional Facility; (2) order the defendants to

produce any investigation information or reports in

their possession, including any reports identifying

witnesses to the alleged attack or attacks on decedent;

and (3) permit her to depose further witnesses who may

become known to her based on the materials provided by

the defendants.1 Pl.’s Renewed Mot. for Leave to

1. In her first motion, administrator Brown

requested leave to depose defendants Jones and Lamar.

While her renewed motion repeats a paragraph about the

need for Jones and Lamar’s testimony, Pl.’s Renewed

Mot. for Leave to Conduct Expedited Discovery (Doc. 19)

at 2, she has titled her motion “Plaintiff’s Renewed

Motion for Leave to Conduct Expedited Discovery of

Incarcerated Eye-Witnesses,” and her request for relief

omits Jones and Lamar. Pl.’s Renewed Mot. for

2

Conduct Expedited Discovery (Doc. 19). The defendants

have filed motions to dismiss on the basis of qualified

immunity, among other grounds.

Federal Rule of Civil Procedure 26(d)(1) states the

general rule that, “A party may not seek discovery from

any source before the parties have conferred as

required by Rule 26(f), except ... when authorized by

these rules, by stipulation, or by court order.” Fed.

R. Civ. P. 26(d)(1). Administrator Brown moves for a

court order authorizing expedited discovery. Although

the Eleventh Circuit Court of Appeals “has not adopted

a standard for allowing expedited discovery, ... many

district courts within the Eleventh Circuit have

expressly used a general good cause standard when

confronted with expedited discovery requests.”

, No. 1:20-CV-03210-SCJ, 2020 WL 8258735, at

Leave to Conduct Expedited Discovery (Doc. 19) at 4.

Consequently, the court concludes that the paragraph

related to Jones and Lamar was included accidentally

and that Brown has not renewed her request to depose

those defendants.

3

*3 (N.D. Ga. 2020) (Jones, J.). Under this standard,

“the party requesting expedited discovery has the

burden of showing the existence of good cause, and that

the need for the discovery outweighs any prejudice to

the opposing party.”

, No. 08-01916-MD-MARRA, 2015 WL 12601043, at *3

(S.D. Fla. 2015) (Marra, J.). “Good cause may be

established by showing ‘some impelling urgency which

necessitates action forthwith and excuses giving notice

to the other party,’ such as ‘a showing that the

desired testimony is in hazard of loss unless the

deposition is taken forthwith.’”

, No. 09-23864-CIV, 2010

WL 1027408, at *1 (S.D. Fla. 2010) (Seitz, J.) (quoting

, 279 F. Supp.

422, 423–24 (S.D.N.Y. 1968) (MacMahon, J.)).

Resolution of administrator Brown’s motion for

expedited discovery must take into account the

defendants’ motions to dismiss on the basis of

4

qualified immunity. When a defendant has asserted an

immunity defense, “[t]he court starts from the general

premise that ‘until the threshold immunity question is

resolved, discovery should not be allowed.’”

, 209 F.R.D. 493, 495 (M.D.

Ala. 2002) (Thompson, J.) (quoting

, 457 U.S. 800, 818 (1982));

, 861 F.3d 1300, 1302 (11th Cir.

2017) (per curiam) (“[I]mmunity is a right not to be

subjected to litigation beyond the point at which

immunity is asserted.”). Although “[d]istrict judges

are accorded wide discretion in ruling upon discovery

motions,” , 97 F.3d 499, 506 (11th

Cir. 1996), “the trial court must exercise its

discretion in a way that protects the substance of the

qualified immunity defense. It must exercise its

discretion so that officials are not subjected to

unnecessary and burdensome discovery or trial

5

proceedings,” , 523 U.S. 574,

597–98 (1998).

A defendant’s entitlement to avoid the burden of

discovery is particularly substantial where the

defendant has asserted immunity in a motion to dismiss

that challenges the legal sufficiency of the complaint.

, 472 U.S. 511, 526 (1985)

(“Unless the plaintiff’s allegations state a claim of

violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal

before the commencement of discovery.”);

, No. 2:18-CV-977-WKW, 2019 WL 1233853, at *2

(M.D. Ala. 2019) (Watkins, J.) (observing that “the

court should not allow discovery in the face of a

pending motion to dismiss that tests the legal

sufficiency of the complaint — especially when that

motion also asserts an immunity defense”). When such a

motion is pending, the plaintiff’s need for the

discovery is limited because such challenges present

6

“no issues of fact,” as “the allegations contained in

the pleading are presumed to be true.”

, 123 F.3d 1353, 1367 (11th Cir.

1997).2

2. As support for her discovery request,

administrator Brown cites primarily to cases in which a

court concluded that limited discovery was appropriate

in order for the court to rule on a qualified-immunity

defense asserted in a motion for summary judgment,

rather than a motion to dismiss. , 523

U.S. at 593 n.14 (recognizing that “limited discovery

may sometimes be necessary before the district court

can resolve a motion for summary judgment based on

qualified immunity”). These cases do not support

Brown’s request for expedited discovery prior to

resolution of the defendants’ motions to dismiss.

In one case, , No. 5:13-CV-256

(MTT), 2014 WL 2565579 (M.D. Ga. 2014) (Treadwell, J.),

a district court ordered “limited discovery” prior to

resolution of a motion to dismiss on the ground of

qualified immunity. In that case, the plaintiff

administrator of the estate of an inmate who was killed

by his cellmate brought § 1983 claims against prison

employees, who moved for dismissal on the ground of

qualified immunity and failure to state a claim.

Concluding that there was a “missing link” in the

plaintiff’s “otherwise sufficient allegations of

deliberate indifference,” the court ordered limited

discovery prior to resolution of the motion to dismiss

“for equitable reasons,” because “the Plaintiff’s

access to this final link of evidence ha[d] been

hampered by the fact that [the decedent was] deceased.”

7

To the extent the court has discretion to order

discovery while a motion to dismiss on the basis of

qualified immunity is pending, administrator Brown has

not demonstrated a need for the requested discovery at

this time that justifies ordering expedited discovery

before the Rule 26(f) conference and in the face of the

defendants’ assertions of immunity. As noted earlier,

Brown seeks three categories of discovery at this time:

depositions of inmate witnesses, investigation

information and reports, and other, as yet unknown,

discovery stemming from the first two categories. As

to the inmate depositions, she argues that good cause

exists to grant expedited discovery because of the

heightened risk of loss or impairment of the testimony

of the inmates she requests leave to depose. Pl.’s

Renewed Mot. for Leave to Conduct Expedited Discovery

at *1–2. In the instant case, Brown does not argue

that discovery is required to correct any defects in

her pleadings, so the concerns raised in are

inapposite to her pending motion.

8

(Doc. 19) at 2–4. According to her, these inmates, who

reportedly are eyewitnesses with firsthand information

regarding the circumstances of the death of decedent,

are incarcerated at the Bullock Correctional Facility,

where they are exposed “to the constant and continuous

danger of ... serious physical and mental injury and/or

loss of life.” Pl.’s Renewed Mot. for Leave to

Conduct Expedited Discovery (Doc. 19) at 4.

Administrator Brown does not explicitly identify the

basis for her request for expedited discovery of any

investigation information and reports in the

defendants’ possession. In light of her request for

leave to depose additional witnesses who may become

known to her through depositions or the information

sought from the defendants, the court understands all

of her requests to be grounded in the risk of loss of

testimony of incarcerated witnesses, both known and

unknown. However, as stated previously, the requested

discovery would have limited value to disposition of

9

the motions to dismiss, and Brown’s generalized

assertion that violence against inmates at the Bullock

Correctional Facility jeopardizes the testimony of the

witnesses she seeks to depose--without further

information specific to these witnesses--fails to

establish an urgency that justifies subjecting the

defendants to the burdens of discovery at this early

stage of proceedings, especially in the face of a

qualified-immunity defense.

Had Brown shown a particularized, substantial risk

of the future unavailability of a key witness--such as

an inmate with a terminal illness, or perhaps, more

germanely to this case, an inmate receiving specific

death threats in prison--a deposition of that inmate

might be allowable, even in the face of a motion to

dismiss on the basis of qualified immunity. Here,

however, Brown seeks wide-ranging discovery on the

basis of a generalized danger to all inmate witnesses.

10

That is simply not permissible under the law as it

stands.

* * *

Accordingly, it is ORDERED that plaintiff Jennifer

Brown’s renewed motion for leave to conduct expedited

discovery (Doc. 19) is denied.

DONE, this the 4th day of October, 2021.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

11

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