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.
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*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
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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
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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
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“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
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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
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