Johnson v. Erickson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES RAY JOHNSON,
Plaintiff,
vs.
DAVE ERICKSON, Chief of Police
Brookings Police Department, JOE
FISHBAUGHER, Assistant Chief of
Police Brookings Police Department,
DAMIAN WEETS, Sargent Brookings
Police Department, JOHN
MCQUISTION, Parole Officer, and
GEOFFREY POLLMAN, Police Officer
Brookings Police Department,
Defendants.
4:20-CV-04168-KES
ORDER DENYING DEFENDANTS’
MOTIONS TO DISMISS AND ORDER
ON MISCELLANEOUS MOTIONS
Plaintiff, Charles Ray Johnson, filed a pro se civil rights lawsuit under 42
U.S.C. § 1983. Docket 1.
I. 	Motions to Dismiss
Defendants Dave Erickson, Joe Fishbaugher, and Damian Weets filed a
joint separate motion to dismiss and answer. Docket 28. Erickson,
Fishbaugher, and Weets base their motion to dismiss on “the grounds that the
actions of these defendants, and each of them, are protected by the doctrine of
qualified immunity which precludes suit against them.” Id. at 1. Defendant
John McQuistion moves to dismiss and answer. Docket 42. McQuistion bases
his motion to dismiss on qualified immunity. Id. at 1. Finally, defendant
Geoffrey Pollman moves to dismiss based on qualified immunity. Docket 48.
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Defendants’ motions do not include a brief in support of their positions.
Under this court’s Local Civil Rules, “[w]ith every motion raising a question of
law, . . . the movant must serve and file a brief containing the movant’s legal
arguments, the authorities in support thereof, and the Federal Rule of Civil
Procedure on which the movant relies.” D.S.D. Civ. LR 7.1(B). Defendants’
motions raise a question of law, whether they are entitled to qualified
immunity, but defendants did not file briefs in support. Thus, defendants’
motions to dismiss (Dockets 28, 42, 48) do not comply with this court’s Local
Civil Rules. The court cannot rule on whether defendants are entitled to
qualified immunity with such sparse motions and without briefs in support. As
a result, the motions to dismiss are denied.
II. 	Motion to Stay Discovery
Defendants move to stay discovery until this court resolves their
forthcoming motion for summary judgment “based, in part, on the doctrine of
qualified immunity.” Docket 49 at 2. “Qualified immunity is an immunity from
suit, not simply from liability” and protects officials from pretrial discovery.
Janis v. Biesheuvel, 428 F.3d 795, 800 (8th Cir. 2005) (citing Mitchell v.
Forsyth, 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.”
Mitchell, 472 U.S. at 526 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Because defendants’ forthcoming motion for summary judgment is
based in part on qualified immunity, staying discovery related to the qualified
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immunity issue is appropriate. But Johnson is entitled to discovery on claims
that are unrelated to the defense of qualified immunity, such as a statute of
limitations defense.
III. 	Motions Regarding Discovery
Johnson moves to subpoena and for discovery. Dockets 35, 47. Because
discovery is stayed in part until after resolution of the motions for summary
judgment based on qualified immunity, defendants do not need to respond to
these discovery requests at this time.
After the summary judgment motions are resolved, Dockets 35 and 47
appear to be requests for production of documents. Under Federal Rule of Civil
Procedure 34(a) “[a] party may serve on any other party a request [for
production of documents.]” As the rule states, Johnson should serve the
request on defendants. An order of the court is not necessary, and the
discovery requests should not be filed with the court.
If defendants fail to respond to Johnson’s discovery requests, Johnson
can make a motion to compel disclosure or discovery under Federal Rule of
Civil Procedure 37(a). The motion must include a certification that Johnson
made a good faith effort to resolve the dispute. Fed. R. Civ. P. 37(a)(1). Because
Johnson failed to follow the Federal Rules of Civil Procedure regarding seeking
discovery, his motions are denied without prejudice.
Thus, it is ORDERED:
1. That defendants’ motions to dismiss (Dockets 28, 42, 48) are denied.
2. That Johnson’s motions to subpoena and for discovery (Dockets 35
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and 47) are denied.
3. Defendants’ motion to stay discovery (Docket 49) is granted in part.
Johnson is entitled to discovery for claims unrelated to defendants’
qualified immunity defense.
4. Defendants’ motion for summary judgment based on qualified
immunity must be filed within 30 days from the entry of this order. If
defendants’ motion for summary judgment is denied, the stay of
discovery will be lifted.
Dated May 13, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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