United States District Court, D. South Dakota, Central Division
ORDER DENYING DEFENDANT'S MOTION TO STAY DISCOVERY AND PROTECTIVE ORDER
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Plaintiff, Travis Ross ("Ross"), filed this § 1983 action against Dr. Mary Carpenter ("Dr. Carpenter") alleging that she was deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment. Doc. 1. This Court screened Ross's claim pursuant to 28 U.S.C. § 1915(e)(2)(B), determined his claim was sufficiently pleaded, and entered an Order Directing Service of Complaint. Doc. 6. Dr. Carpenter then filed a Motion to Stay Discovery and for Protective Order until the issue of qualified immunity is resolved. Doc. 14. Ross opposes staying discovery. Doc. 16. For the reasons explained below, Dr. Carpenter's motion to stay discovery is denied and limited discovery is allowed.
II. FACTS ALLEGED IN COMPLAINT 
Dr. Carpenter is the Director of Prison Health Care at the Mike Durfee State Prison where Ross is currently incarcerated. Doc. 1. During Ross's arrest on the charges leading to his conviction, Ross was apparently shot four times, including once in the abdomen. Doc. 1 at 1-2. His injury required various medical procedures, including "a [laparotomy] with segmental colon resection and proximal colostomy." Doc. 1 at 2. Ross claims that the doctors in Rapid City who performed these procedures "informed him that after the injury had healed, a process called [a] colostomy takedown should be performed to prevent any permanent loss of his normal rectal functions." Doc. 1 at 2.
On February 3, 2014, Ross was seen by Dr. Ryan Manson ("Dr. Manson"), a prison health care provider at Mike Durfee State Prison. Doc. 1 at 2. Ross asserts that Dr. Manson reviewed Ross's medical records and was aware that Rapid City doctors had previously informed Ross that he would need to see a gastroenterologist to be evaluated for a colostomy takedown. Doc. 1 at 2; Doc. 1-1 at 1. Considering that it had been approximately eight months since Ross's colostomy, Dr. Manson requested that Ross receive such a consultation on February 4, 2015. Doc. 1 at 2; Doc. 1-1 at 1-2. Dr. Carpenter denied Dr. Manson's request the next day deeming a colostomy takedown to be an "elective procedure." Doc. 1 at 2; Doc. 1-1 at 2. Ross contends that Dr. Carpenter never saw him before the denial was made and alleges that Dr. Carpenter was deliberately indifferent to his serious medical needs when she denied Dr. Manson's request. Doc. 1 at 1-2. Ross unsuccessfully sought informal and administrative relief. Doc. 1 at 2-3; Doc. 1-1 at 2-6.
Ross claims that the colostomy takedown is necessary to improve his quality of life and that he needs to see a specialist. Doc. 1 at 3. He maintains that he cannot regain a normal life or bodily functions without this procedure. Doc. 1 at 3. In relief, Ross requests this Court to order an appointment for him to see a gastroenterologist and demands $300, 000 in compensatory and punitive damages and other equity relief the courts finds appropriate. Doc. 1 at 3-4.
After this Court entered an Order Directing Service of Complaint, Doc. 6, Dr. Carpenter filed a motion to stay discovery until the issue of qualified immunity is resolved, Doc. 14. Dr. Carpenter also seeks an order from this Court protecting her from having to respond to already-served interrogatories. Doc. 14; Doc. 15 at 2; Doc. 15-1. Ross opposes staying discovery. Doc. 16.
Cases from the Supreme Court of the United States stress that "[q]ualified immunity is an immunity from suit, not simply from liability, " Janis v. Biesheuvel. 428 F.3d 795, 800 (8th Cir. 2005) (citing Mitchell, 472 U.S. at 526), and thus the immunity defense should be decided as early in the case as possible, see Harlow v. Fitzgerald. 457 U.S. 800, 816-19 (1982). The Supreme Court's qualified immunity decisions seek to protect officials entitled to qualified immunity not only from the burdens of trial, but also from pretrial discovery. See, e.g.. id. at 817-19; Mitchell, 472 U.S. at 526. In Harlow, the Supreme Court stressed that one of the reasons for defining qualified immunity in essentially objective terms was to protect officials sued from "the burdens of broad-reaching discovery." 457 U.S. at 818. The Supreme Court stated that until the threshold issue of whether the law was clearly established is resolved, "discovery should not be allowed." Id.; see also Mitchell 472 U.S. at 526 (providing that a defendant is entitled to dismissal under qualified immunity unless plaintiff alleges a violation of clearly established law because without such a requirement pretrial discovery "can be peculiarly disruptive of effective government" (citation omitted)). At the same time, however, Supreme Court decisions have acknowledged that there are limited situations in which pretrial discovery should be allowed on factual issues that are likely to impact the qualified immunity defense. See, e.g., Mitchell, 472 U.S. at 526 ("Even if the plaintiffs complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.").
The Supreme Court addressed discovery prior to consideration of a qualified immunity defense in Anderson v. Creighton, 483 U.S. 635 (1985). The Court in Anderson gave lower courts a sequential analysis to follow:
[I]t should first be determined whether the actions the [plaintiff] allege[s] [the defendant] to have taken are actions that a reasonable [official] could have believed lawful. If they are, then [the defendant] is entitled to dismissal prior to discovery. If they are not, and if the actions [the defendant] claims he took are different from those the [plaintiff] allege[s] (and are actions that a reasonable [official] could have believed lawful), then discovery may be necessary before [the defendant's] motion for summary judgment on qualified immunity grounds can be resolved.
Id. at 646 n.6 (internal citation omitted). "[T]his analysis is to be done without any attempt to verify the correctness of plaintiff s complaint." Gainor, 973 F.2d at 1387 (citing Mitchell, 472 U.S. at 528). The district court has "broad discretion" and "many options" in managing this discovery process. Crawford-El v. Britton, 523 U.S. 574, 598-601 (1998). If discovery is allowed, "any such discovery should be tailored specifically to the question of [the defendant's] qualified immunity" such as limiting discovery to what facts the defendant had in his possession at the time of the alleged constitutional violation. Anderson, 483 U.S. at 646 n.6; Gainor, 973 F.2datl387.
In this case, Ross's allegations, if taken as true, support a claim that a reasonable prison official would or should have known that denying Dr. Manson's request was a violation of clearly established law. Although inmates do not have a constitutional right to receive a particular treatment, the law in February of 2014 provided fair warning that it is unlawful for a prison doctor to deny or delay medical treatment to an inmate if the prison doctor knew or should have known that such a denial or delay could create an excessive risk to the inmate's health. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-06 (1976); Pietrafeso v. Lawrence Ctv.. S.D., 452 F.3d 978, 983 (8th Cir. 2006) (quoting Vaughan v. Lacev, 49 F.3d 1344, 1346 (8th Cir. 1995)); Dulanv v. Carnahan. 132 F.3d 1234, 1239 (8th Cir. 1997) (quoting Long v. Nix. 86 F.3d 761, 765 (8th Cir. 1996)). An elective procedure that is medically necessary can qualify as a serious medical need under a deliberate indifference analysis. See Roe v. Crawford, 514 F.3d 789, 798-801 (8th Cir. 2008); see also Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989), as modified on reh'g (Oct. 27, 1989). Because there are factual questions regarding what facts Dr. Carpenter had in her possession at the time she denied Dr. Manson's request-information that perhaps only Dr. Carpenter would ...