Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walker v. Wilburn

United States District Court, Fifth Circuit

December 20, 2013

KELVION WALKER, Plaintiff,
v.
AMY WILBURN, Defendant.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief District Judge.

Plaintiff Kelvion Walker ("Walker") moves for expedited discovery and for leave to issue a subpoena to the City of Dallas. The court denies the motion because it seeks discovery without addressing the issue of qualified immunity that is likely to arise in this case, and because defendant has not yet had an opportunity to file an answer addressing the issue.

Walker brings this action against defendant Amy Wilburn ("Officer Wilburn"), a City of Dallas police officer, under 42 U.S.C. § 1983. Walker alleges that Officer Wilburn used excessive force and violated his constitutional rights when she shot him on December 9, 2013. According to Walker's complaint, this occurred in broad daylight, seconds after Officer Wilburn encountered Walker, while Walker had his hands raised in the air.

Walker now seeks expedited discovery and leave to issue a subpoena to the City of Dallas. His motion focuses on Fed.R.Civ.P. 26(d)(1) and the showing that is necessary to obtain a court order to commence discovery before the court conducts a Rule 26(f) conference. Walker names only Officer Wilburn as a defendant in this action, and his complaint does not indicate that he seeks to hold the City of Dallas or any other party liable for Officer Wilburn's alleged misconduct. See, e.g., Compl. ¶ 2.[1] On the other hand, Walker's complaint clearly alleges a claim against Officer Wilburn, in her individual capacity. Walker fails to address the discovery limitations that will apply if Officer Wilburn asserts-as she likely will-the defense of qualified immunity.[2]

"One of the most salient benefits of qualified immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive." Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012) (citing Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986)). In this circuit, it is established that "[d]iscovery... must not proceed until the district court first finds that the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity." Wicks v. Miss. State Emp't Servs., 41 F.3d 991, 994 (5th Cir. 1995).

[A] plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity. After the district court finds a plaintiff has so pled, if the court remains "unable to rule on the immunity defense without further clarification of the facts, " it may issue a discovery order "narrowly tailored to uncover only those facts needed to rule on the immunity claim."

Backe, 691 F.3d at 648 (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987)).

Nor does it matter that Walker seeks discovery from sources other than Officer Wilburn. Discovery of any kind "must not proceed until the district court first finds that the plaintiff's pleadings assert facts which, if true, would overcome the defense of qualified immunity." Wicks, 41 F.3d at 994. Thus until this court is able to address the issue of qualified immunity, Walker does not have good cause to seek discovery of any kind. See, e.g., Gaines v. Davis, 928 F.2d 705, 707 (5th Cir. 1991) (involving deposition of § 1983 defendant's fellow officer).[3]

At this juncture, the court has not completed the first step of the process required for discovery to commence. And it will not do so in a vacuum without permitting Officer Wilburn to be heard in response. The court may also require that Walker file a Rule 7(a) reply before deciding whether his pleadings are sufficient. See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc).[4]

Accordingly, because the question whether discovery can commence will probably depend not merely on the standard for granting leave under Rule 26(d)(1), but also on the issue of qualified immunity, and because Walker's motion does not address, and it is premature to consider, how qualified immunity will impact the availability of discovery, the court denies Walker's December ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.