IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WENFORD FLETCHER, )

Plaintiff, )

)

v. ) Civil No. 3:05-CV-2138-B

) ECF

DALLAS POLICE DEPARTMENT, et al., )

Defendants. )

FINDINGS AND RECOMMENDATION

The District Court referred “Defendants Schwend and Foster’s Opposed Motion for

Discovery Protective Order,” filed February 24, 2006, to the United States Magistrate Judge. 

Defendants have asserted the defense of qualified immunity. They seek a protective order

relieving them of their obligations for initial disclosures under FED. R. CIV. P. 26(a)(1) and the

District Court’s provisions for initial disclosures in its scheduling order, pending a determination

of their entitlement to qualified immunity. On February 17, 2006, Defendants sent a copy of

their motion to Plaintiff requesting that he advise them whether or not he opposes the motion. 

Plaintiff did not respond.

Analysis

Generally, a plaintiff may not obtain discovery against a party asserting qualified

immunity until the Court first finds that the pleadings assert facts sufficient to overcome the

qualified immunity defense. See, e.g., Wicks v. Mississippi State Employment Servs., 41 F.3d

991, 994 (5th Cir. 1995). “[A] party asserting the defense of qualified immunity is not immune

from all discovery, only that which is ‘avoidable or overly broad.’” Wicks, 41 F.3d at 994 (citing

Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987)). “[W]hen the district court ‘is unable

to rule on the immunity defense without further clarification of the facts’ and when the discovery

 

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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.” Id.

Findings

In this case, Defendants seek only an order that they are not required to provide the broad

initial disclosures required by Rule 26(a)(1) and the District Court’s scheduling order. 

Defendants have not raised the issue of whether the pleadings assert facts sufficient to overcome

the qualified immunity defense. Therefore, the Court need not decide whether discovery which

is “narrowly tailored to uncover only those facts needed to rule on the immunity claim” should

be permitted. Nevertheless, the Court finds that Defendants’ qualified immunity defense entitles

them to protection from discovery at this early stage of the proceedings.

RECOMMENDATION

This Court recommends that the District Court grant “Defendants Schwend and Foster’s

Opposed Motion for Discovery Protective Order,” filed February 24, 2006, pending further

consideration of the issue of qualified immunity.

. Signed, March 3, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these findings and recommendation

within such ten day period may bar a de novo determination by the district judge of any finding 

and shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to findings and recommendation accepted by the District Court.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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