Opinion
01 Civ. 0761 (LAK)
August 28, 2002
ORDER
By letter dated August 23, 2002, defendants seek a stay of all discovery in this action pending their appeal from this Court's August 8, 2002 order (the "August 8 Order"), which denied defendants' application to stay all discovery in this action pending the determination of their motion to dismiss the complaint. This application, like that denied in the August 8 Order, is a serious abuse.
The complaint and supplemental complaint in this prisoner Section 1983 case contain extensive and detailed charges of abuse by at least some of the defendants of plaintiff's constitutionally protected rights. They are so extensive and so detailed that the Court appointed pro bono counsel, as there seems to be sufficient justification, even at this early stage, to believe that there may well be fire at the source of all this smoke. To cite but one example, plaintiff alleges that, on January 24, 2001, defendants Hewitt, Nelson, Malave, Nunez, Nurse, Cousineau and others engaged in an unprovoked attack upon him, put him in mechanical restraints, and then savagely beat him, "repeatedly slamming his head against the cinder block wall" and causing serious injuries including a broken tooth, lacerations, vertigo, hearing loss, and migraine headaches. Supp. Cpt. ¶¶ 14-16, 18-19. This occurred in the presence and, it may be inferred, with the acquiescence and perhaps encouragement of at least Mattes, Kenny, Kutus, Miller, Carlton, and Morse. And following the incident, evidently in an effort to cover up what had occurred, defendant Morse signed a false Inmate Misbehavior Report that charged plaintiff with assaulting staff. Id. ¶ 20.
Defendants, who have sought to stall this litigation at every step, responded by moving to dismiss the complaint. Although the motion has not yet been fully briefed despite the age of the case — defendants' did not file the motion until almost a year after many of them had been served and more recently obtained an extension of time to file their reply papers in support of the motion — a review of the papers filed thus far shows that at least some of the bases of the motion are patently frivolous or immaterial. Moreover, the subject of qualified immunity — which is the foundation of the appeal from the August 8 Order — was mentioned only in the final two pages of their 39-page memorandum.
Defendants now argue that they are entitled to a stay of all discovery because they have raised the defense of qualified immunity in their motion. As a general proposition, no one quarrels with the principle that the merits of any arguable qualified immunity defense should be determined before proceeding to discovery on the merits. The problem here, however, is that this complaint contains claims as to which there quite plainly is no non-frivolous qualified immunity defense at the pleading stage. If, for example, defendants Hewitt, Nelson, Malave, Nunez, Nurse, and Cousineau, as alleged, handcuffed plaintiff and then proceeded to beat him and slam his head repeatedly against a concrete wall, there simply is no way that anyone responsibly could deny that they violated plaintiff's well established constitutional rights and that a reasonable official in their position would have understood that they were doing so. Thus, while it very well may be that discovery pending disposition of the qualified immunity defense should be tailored and restricted so that defendants and alleged incidents as to which the defense might prove meritorious are spared until the motion is decided, defendants have eschewed any such analysis. They simply have taken the blunderbuss tactic of claiming that plaintiff is entitled to no discovery of any kind with respect to anything, irrespective of whether a qualified immunity defense has been asserted in any but conclusory terms and irrespective of whether it has any color of merit.
Moreover, it appears that the application is not only ill-founded in this respect, but unnecessary. Defendants' reply papers on the motion to dismiss are due on September 9, and there has been no showing that anything is likely to happen on the discovery front in the imminent future.
This Court stands ready to address any reasonable, carefully considered application for a stay of discovery tailored as indicated above. It will not be a party to these stalling tactics, which, like aspects of the motion to dismiss, may raise issues concerning the conduct of defense counsel.
The motion is denied without prejudice to renewal as indicated.
SO ORDERED.