United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION FOR PROTECTIVE ORDER AND
DENYING REMAINING MOTIONS
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Bruce Edgar Smith, filed a pro se lawsuit under 42 U.S.C.
§ 1983. Smith has again filed a number of motions, and
defendants move the court to grant them a protective order
staying discovery. For the reasons below, the court denies
Smith's motions and grants defendants' motion.
move the court to grant them a protective order staying
discovery until resolution of the qualified immunity issue.
Pursuant to Rule 26(c), “the court has discretion to
stay discovery on other issues until the critical issue has
been decided.” 8A Charles Alan Wright, Arthur R.
Miller, and Richard L. Marcus, Federal Practice and
Procedure § 2040 (3d ed.); Steinbuch v.
Cutler, 518 F.3d 580, 588 (8th Cir. 2008) (citing
Lakin v. Prudential Sec., Inc., 348 F.3d 704, 713
(8th Cir. 2003)); see also Maune v. Int'l Bhd. of
Elec. Workers, 83 F.3d 959, 963 (8th Cir. 1996)
(upholding the district court's granting of a party's
request to stay discovery).
argues that the court should deny defendants' motion
because they were required to raise the qualified immunity
argument before answering or before the court issued a
scheduling order. He cites Turner v. Clelland, No.
1:15CV947, 2016 WL 6997500 (M.D. N.C. Nov. 30, 2016),
report and recommendation adopted sub nom. Turner, Jr. v.
Clelland, No. 1:15CV947, 2017 WL 913630 (M.D. N.C. Mar.
7, 2017). The court in Turner, however, denied the
same argument Smith raises. Because the qualified immunity
issue may be dispositive, the court grants defendant's
motion for a protective order and stays discovery until
resolution of the qualified immunity issue.
filed a number of motions pertaining to discovery both before
and after defendants moved for a protection order. Dockets
93, 105, 110. Because discovery has now been stayed, these
motions are denied. Smith may refile them if defendants'
motion for summary judgment based on qualified immunity is
Responses From the Court
filed a number of motions concerning the lack of response he
receives from the court and defendants. Dockets 100, 112.
Both the court and defendants have provided the necessary
responses to Smith's filings. Therefore, the motions are
denied. This includes Docket 106, which was docketed as a
letter, but may be construed as a motion for a temporary
restraining order because Smith believes his mail is not
being sent due to lack of response from the court. Smith also
filed a motion putting the court and parties on notice that
he will appeal if his motions are denied. Docket 86. With
this motion, Smith merely expresses his unhappiness with the
court's decisions, and it is dismissed as well.
Motions to Amend
moves to amend his complaint three times. Dockets 88, 108,
109. Under Federal Rule of Civil Procedure 15, a party may
amend its pleading once as a matter of course within 21 days
after serving it. “In all other cases, a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). “Although leave to amend shall be freely
given when justice so requires, plaintiffs do not have an
absolute or automatic right to amend. Futility is a valid
basis for denying leave to amend.” Sorace v. United
States, 788 F.3d 758, 767 (8th Cir. 2015) (citation
amendments seek to add defendants who the court previously
dismissed, and the majority of the documents are identical.
Smith offers no compelling reason why the court should
reverse its decision to dismiss these defendants. ...