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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

LONNIE KADE WELSH, §

Plaintiff, §

§

v. § A-20-CV-337-RP

§

BRYAN COLLIER, et al., §

Defendants. §

ORDER

Before the Court are several pending motions: defendants Marsha McLane, Rachel 

Nowlin, Valencia Pollard-Forstsan, and Katherine Rediskez’s Motions to Dismiss (ECF Nos. 31, 

34), and Plaintiff Lonnie Kade Welsh’s Motion to Quash (ECF No. 36), Motion to Compel 

Discovery (ECF No. 37), Motion to Dismiss in Part and Affirm in Part Plaintiff’s Motion to 

Compel Discovery (ECF No. 43), and second Motion to Amend (ECF No. 39). Plaintiff is 

proceeding pro se and in forma pauperis in this 42 U.S.C. § 1983 civil-rights lawsuit. He is also a 

civilly-committed Sexual Violent Predator (SVP) currently in custody at the Texas Civil 

Commitment Center (TCCC) in Littlefield, Texas.

Regarding Plaintiff’s second motion to amend, the Court notes it previously granted 

Plaintiff’s unopposed Motion to Extend the Scheduling Order Deadline wherein Plaintiff stated he 

spoke with Adam Fellows, counsel for defendants Bryan Collier, Joni White, and Marsha McLane, 

and that he and Fellows agreed “to extend the date to amend or supplement pleadings or to join 

additional parties by September 17, 2020.” (Id.) Plaintiff thereafter filed his second Motion to 

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Amend on September 14, 2020.1 Although the facts and claims are largely unchanged from his 

first amended complaint, Plaintiff names defendants McLane and Collier in their official 

capacities in addition to their individual capacities, and names three new defendants: Tara Burson, 

Marissa Bartholete, and April Thompson, all alleged members of the State Classification 

Committee (SCC) at the Texas Department of Criminal Justice—Correctional Institutions 

Division. 

A party may amend its pleading once as a matter of course within 21 days after serving it.

FED. R. CIV. P. 15(a)(1)(A). 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). “The court should 

freely give leave when justice so requires.” Id. Determining when justice requires permission to 

amend rests within the discretion of the court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 

U.S. 321, 330 (1971); Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 122 (5th Cir. 1980).

Justifications for denying leave to amend include undue delay, bad faith, and dilatory motive, see 

Cantú v. Moody, 933 F.3d 414, 424 (5th Cir. 2019) (quotation and citation omitted), as well as

whether the facts underlying the amended complaint were known to the party when the original 

complaint was filed, see In re Southmark Corp., 88 F.3d 311, 316 (5th Cir. 1996). Nonetheless, 

Rule 15 “evinces a bias in favor of granting leave to amend.” Rosenzweig v. Azurix Corp., 332 F.3d 

854, 863 (5th Cir. 2003) (citations omitted).

1 Although Plaintiff’s motion was not received by the Clerk’s Office until September 18, 2020, it is dated September 

14, 2020 and is considered timely pursuant to the prison mailbox rule. See Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 

2009) (prisoner’s pleading is deemed filed on the date that the pro se prisoner submits the pleading to prison 

authorities for mailing); Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016) (prison mailbox rule applies to SVP’s 

Rule 59(e) motion, given the level of SVP’s confinement and his inability to file the motion himself). 

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Although Plaintiff’s proposed second amended complaint contains relatively few new 

factual allegations, he does name three new defendants—names he alleges he only recently 

received—and names defendants Collier and McLane in their official as well as individual 

capacities. Further, in Plaintiff’s motion to change the scheduling order, he stated Adam Fellows

agreed to his proposed scheduling changes and, in any event, no defendant has filed an opposition 

to Plaintiff’s motion to amend. Accordingly, the Court grants Plaintiff’s second motion to amend 

his complaint, and as a result, dismisses the two pending motions to dismiss—directed at

Plaintiff’s first amended complaint—without prejudice to refiling, and dismisses Plaintiff’s 

motion to quash as moot. 

Turning to Plaintiff’s Motion to Compel, Plaintiff alleges Collier failed to answer some of 

his interrogatories and that defendants McLane, Pollard-Forstsan, Nowlin, and Rediskez failed to 

answer at all. He states he is seeking the identity and address of the Step II Medical Grievance 

officer he names in his complaint; he also seeks sanctions. (ECF No. 37.) In response, defendants 

Pollard-Forstsan, Nowlin, and Rediskez object to engaging in any discovery prior to the Court’s 

ruling on their entitlement to qualified immunity. They also argue Plaintiff’s motion should be 

denied because it is procedurally deficient: first, the motion does not include the certification 

required by Federal Rule of Civil Procedure 37(a)(1); second, Plaintiff failed to confer with 

defendants’ counsel as required by Rule 37; and third, the motion fails to comport with Federal 

Rule of Civil Procedure 7(b)(1). (ECF Nos. 40, 41.) 

Plaintiff subsequently filed a motion to dismiss in part and affirm in part his discovery 

motion, stating that defendants Collier and McLane had complied with his discovery requests and 

he thus sought to dismiss his motion as it applied to them; however, he reaffirmed his motion to 

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compel as it applied to defendants Pollard-Forstsan, Nowlin, and Rediskez. (ECF No. 43.) The 

Court will grant Plaintiff’s request to dismiss Collier and McLane from his Motion to Compel.

Defendants Pollard-Forstsan, Nowlin, and Rediskez argue they are immune from 

discovery by virtue of having asserted their entitlement to qualified immunity in their Motion to 

Dismiss. Although the Supreme Court held in Harlow that discovery should not be allowed until 

the issue of immunity is resolved, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), not all 

discovery is forbidden. Rather, only discovery that is either avoidable or over broad is not 

permitted. Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987). The Fifth Circuit has held that 

“when the district court ‘is unable to rule on the immunity defense without further clarification of 

the facts’ and when the discovery order is ‘narrowly tailored to uncover only those facts needed to 

rule on the immunity claim’ an order allowing such limited discovery is neither avoidable nor 

overly broad.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995) (quoting Lion 

Boulos, 834 F.2d at 507-08). As a result, Defendants’ assertion that they are entitled to qualified 

immunity is not enough to immunize them from Plaintiff’s discovery requests.

Further, Defendants’ argument that the Court should deny Plaintiff’s motion because he 

failed to comply with the requirements of Rule 7 and 37 is also unpersuasive: Plaintiff is in custody 

at the TCCC2thus curtailing his ability to confer with defendants. Further, the Court is mindful of 

its duty to treat pro se litigants with more leniency than represented parties. 

The Court has just granted Plaintiff’s second motion to amend and, according to the 

scheduling order, the parties have until April 19, 2021, to complete discovery, six months from 

now. The Court therefore grants Plaintiff’s Motion to Compel against defendants Pollard-Fortsan, 

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It appears from Plaintiff’s change of address notice filed on October 5, 2020 that he is currently being detained at the 

Lamb County Jail. (ECF No. 42.)

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Nowlin, and Rediskez to the extent that the information he seeks would clarify their entitlement to 

qualified immunity, should they choose to re-plead that affirmative defense. Further, defendant 

Pollard-Fortsan is ordered to disclose, if known, the name and address of the Step II Medical 

Grievance Program Officer Plaintiff refers to in his complaint and in his interrogatories.

It is therefore ORDERED that Plaintiff’s Motion to Amend (ECF No. 39) is GRANTED; 

It is further ORDERED that the Motions to Dismiss filed by McLane, Nowlin, 

Pollard-Forstsan, and Rediskez are DISMISSED WITHOUT PREJUDICE to refiling (ECF 

Nos. 31, 34) and Plaintiff’s Motion to Quash is DISMISSED WITHOUT PREJUDICE as moot 

(ECF No. 36); 

It is further ORDERED that Plaintiff’s Motion to Dismiss in Part and Affirm in Part (ECF 

No. 43) is GRANTED IN PART as against defendants Collier and McLane; and 

It is finally ORDERED that Welsh’s Motion to Compel Discovery (ECF No. 37) is 

GRANTED IN PARTED and is limited to that which is necessary to address the qualified 

immunity issue and the identity of the Step II medical grievance officer; Plaintiff’s request for 

sanctions is DENIED.

SIGNED this 27th day of October, 2020.

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

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