IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA, 

NORTHERN DIVISION

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all other similarly situated; )

) Case No: 2:06-CV-755-MHT

Plaintiff, )

)

vs. )

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all other similarly situated; )

) Case No: 2:06-CV-908-MHT

Plaintiff, )

)

vs. )

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 1 of 9
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MOTION FOR PROTECTIVE ORDER

TO QUASH THE TAKING OF THREE DEPOSITIONS

The undersigned counsel for the Alabama Department

of Youth Services (the “Department”), and counsel for

the Defendant herein, J. Walter Wood, Jr., files this

motion on behalf of the Department, on behalf of the

Defendant J. Walter Wood, Jr., and on behalf of three

Department of Youth Services employees--Gary Gregg,

Queen Barker, and Khaki Sanford--who are subpoenaed to

appear for depositions. The undersigned hereby objects

to, and moves for a protective order quashing, said

deposition subpoenas issued for DYS employees Gary

Gregg, Queen Barker, and Khaki Sanford, all of whom are

on the DYS Screening and Placement Committee. This

motion is based on the following grounds:

(1) The Defendant Executive Director J. Walter

Wood, Jr. is immune from suit based on sovereign or

qualified immunity. These defenses protect government

officials like Executive Director Wood not only from

having to stand trial, but from having to bear the

burdens attendant to litigation, including pretrial

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 2 of 9
 See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 1

S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (“The

entitlement is an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it

is effectively lost if a case is erroneously permitted

to go to trial.”); Elliott v. Perez, 751 F.2d 1472,

1478 (5th Cir.1985) (“[S]ubjecting officials to trial,

traditional discovery, or both concerning acts for

which they are likely immune undercuts the protection

from government disruption which official immunity is

supposed to afford.”)

 See Goshtasby v. University of Illinois, 123 F.3d

2

427, 428 (7th Cir.1997). ; Apostol v. Gallion, 870

F.2d 1335, 1339 (7th Cir.1989); Workman v. Jordan, 958

F.2d 332, 336 (10th Cir.1992); Summit Medical Assoc.,

P.C. v. James, 998 F.Supp. 1339, 1342-43 (D.C. Ala.

1998) (J. Thompson). 

3

discovery. A district court, therefore, should stay 1

discovery pending appeal of a denial of immunity. Thus 2

the depositions of employees--Gary Gregg, Queen Barker,

and Khaki Sanford-must be stayed until after the

resolution of Executive Director Wood’s immunity.

(2) The Defendant J. Walter Wood, Jr. has a right

to stay all discovery pending the resolution of his

immunity defense and the Plaintiff does not under the

law have a right to discovery simply because he has

alleged deliberate indifference. Stated differently,

the mere allegation of deliberate indifference does not

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 3 of 9
The Plaintiff incorrectly argues, without factual

3

support, that Executive Director Wood’s “personal

involvement” is established by: 

(1) failure to take corrective action

after learning of a subordinate’s unlawful

conduct, (2) creation of a policy or

custom fostering the unlawful conduct, (3)

gross negligence in supervising

subordinates who commit unlawful acts, or

(4) deliberate indifference to the rights

4

automatically defeat an immunity defense. 

(3) The first step in this Court’s analysis of

qualified immunity–namely determination of whether a

constitutional violation has been alleged–requires

examination of the evidence to support deliberate

indifference. The Plaintiff however has not bothered

to argue that evidence exists to show deliberate

indifference by the Executive Director. He merely

insists that because the wait lists persist the

Executive Director is necessarily vicariously liable. 

The argument is totally without merit.

(4) The Plaintiff seeks to hold J. Walter Wood, Jr.

personally liable for the alleged unreasonable time

J.B. remained in detention simply because of his

position as Executive Director of the agency. The 3

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 4 of 9
of others by failing to act on information

regarding the unlawful conduct of

subordinates. (Doc. 38, p. 46, Plaintiff’s

Brief in Opposition to Summary Judgment,

emphasis added). 

5

dispositive question in this action exclusively

involves whether the Executive Director, J. Walter

Wood, Jr. deliberately and indifferently caused J. B.

to remain in detention pending placement at DYS. No

evidence shows that Executive Director Wood acted with

deliberate indifference toward J.B. The uncontradicted

evidence, however, shows that through no deliberate

indifference on the part of Executive Director Wood, no

bed was available for J.B. in his needs category.

(5) Gary Gregg, Queen Barker, and Khaki Sanford are

employees of the Alabama Department of Youth Services.

Each serves on the Alabama Department of Youth Services

Screening and Placement Committee. 

(6) It is undisputed that the Defendant was aware

of the wait lists and took action when possible within

the confines of the laws and rules of the system, to

minimize the wait lists. The Plaintiff seeks to

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 5 of 9
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deflect attention from the Executive Director to the

Screening and Placement Committee. However, the

undisputed evidence shows (1) the Executive Director

does not participate in the Screening and Placement

Committee, (2) had no direct knowledge of J.B., and

most importantly (3) the Screening and Placement

Committee did not cause J.B. to remain in detention for

even a single moment. It is undisputed, and

undisputable, that J.B. remained in detention not

because of any action or inaction by the Screening and

Placement Committee–legal or illegal-but because there

were no beds available in his needs category and

because the committing judge ordered him to be detained

pending placement in a DYS facility. 

(7) The Plaintiff also speculates that a causal

connection between the Defendant J. Walter Wood, Jr.

and the alleged “unlawful actions” of his subordinates

exists simply because “without doubt he has been fully

aware each week that children are waiting in detention

for unreasonable time periods and he was deliberately

indifferent to J.B.’s rights.” (Doc. 38, p. 46,

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 6 of 9
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Plaintiff’s Brief in Opposition to Summary Judgment).

That argument has no merit whatsoever. Obviously, the

Executive Director’s deliberate indifference cannot be

logically proved by speculation that the Executive

Director was deliberately indifferent. But more

importantly, the committee committed no illegal acts,

and even if they had, that would not have been the

cause of J.B.’s remaining in detention. Therefore,

there can be no “causal link” between the Defendant and

the alleged constitutional violation–namely, J.B.’s

time in detention after adjudication for offenses

including burglary and other criminal offenses–as a

result of acts by the Committee. The Committee simply

did not cause the alleged violation. 

(8) The depositions are sought solely for the

purpose of imposing annoyance, oppression and an undue

burden on the State of Alabama, the Department, the

Defendant, and the witnesses. As more fully discussed

in the paragraphs above, the deposition testimony

sought is irrelevant and immaterial to the issues in

this action and are not reasonably calculated to lead

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 7 of 9
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to the discovery of admissible evidence. 

WHEREFORE, for the foregoing reasons, the

Department moves the Court to enter a protective order

quashing the deposition subpoenas of DYS employees--

Gary Gregg, Queen Barker, and Khaki Sanford–and

ordering that the depositions shall not proceed.

Respectfully submitted

TROY KING

ATTORNEY GENERAL

s/ T. Dudley Perry, Jr. 

T. Dudley Perry, Jr.

Bar Number: 3985-R67T

Deputy Attorney General

Alabama Dept of Youth Services

Post Office Box 66

Mt. Meigs, AL 36057

Telephone: (334) 215-3803

Fax: (334) 215-3872

E-Mail:

dudley.perry@dys.alabama.gov

CERTIFICATE OF SERVICE

I hereby certify that on the 25 day of July, 2007,

th

I electronically filed the forgoing Motion for

Protective Order to Quash the Taking of Three

Depositions, with the Clerk of the Court using the

CM/ECF system which will send notification of such

filing to the following:

Case 2:06-cv-00755-MHT-CSC Document 46 Filed 07/25/2007 Page 8 of 9
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Michael J. Crow, Esq.

Beasley, Allen

Post Office Box 4160

Montgomery, AL 36103-4160

Robert D. Drummond, Jr., Esq

Attorney At Law

323 De La Mare Avenue

Fairhope, AL 36532

s/T. Dudley Perry, Jr. 

T. Dudley Perry, Jr.

Deputy Attorney General

Alabama Department of

Youth Services

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