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Lawyers Deny Inmate Discovery Pending Motion to Dismiss in Federal Court

In all the lawsuits brought by federal prisoners against prison staff, the U.S. Attorney who defends them will usually file a Motion to Dismiss or in the Alternative for Summary Judgement in favor of the defendants. Plaintiffs should respond quickly and firmly requesting the court to review the matter or appeal.

A prisoner files his complaint, then attempts discovery proceedings. The government then files their response, and a motion to dismiss. If you pursue your discovery proceedings, they will file a motion to stay discovery waiting for the judge to rule on their motion to dismiss.

The usual defense by the government says; 1. Plaintiff has failed to state a claim for violation of his constitutional rights. 2. The defendants are entitled to qualified immunity. 3. In the alternative, the defendants are entitled to summary judgement because there are no disputed issues of material fact and they are entitled to a judgement as a matter of law. 4. Plaintiff has failed to state a claim for which relief can be granted.

Of course, this is a boilerplate response and you should expect them to try to avoid responding to your discovery request. But they do it under what they call "protection of government cover."

Federal Rules of Civil Procedure, Rule 26(c), allows for this often abused procedure.

Although the discovery process contemplates minimal judicial intervention, there are many instances where judicial intervention is sought and obtained, whether for protective orders under Rule 26(c), to compel discovery under Rules 37(d) and 45, or to compel answers to questions under Rule 37. In addition, the court may enter orders governing discovery under the Rule 26(f) discovery plan procedure. If a discovery order is issued by the court, this risks irreparable injury to your case. What is your remedy?

As a general proposition, discovery orders are not appealable; most discovery orders are interlocutory (not finally decisive), and are not final determininations under 28 U.S.C. § 1291. Indeed, nothing in the Rules or in the statutes provides for any appeal of discovery orders. As with most rules, there are exceptions. If an Order of the district court fits the following criteria, an appeal may be allowed: a) The order has a substantial impact on an outcome of the merits of the litigation. b) The order may cause a party to suffer substantial prejudice or irrevocable injury, e.g., an order requiring a party to reveal what they observed, before they forget, moves away, leave the country or reveal protected exempt secrets. See Appealability of Order Pertaining to Pretrial Examination, Discovery, Interrogatories, Production of Books and Papers, or the Like, 37 A.L.R. 2d 586 (1954).

The courts direction you should keep in mind in all litigation is APPEAL and PURPOSE. A final decision on which federal appellate jurisdiction depends generally is one that ends litigation on the merits and leaves nothing for the court to do but execute the judgement. See: Firestone Tire & Rubber Co v Livesay, 449 US 368, 101 Sct 669, 66 LE2d 571 (1981); Cooper & Lybrand v Livesay, 437 US 463, 98 S. Ct. 2454, 57 LE2d 351 (1978); Catlin v. United States, 324 US 229, 65 Sct 631, 89 LE 911 (1945).

There two principal avenues for an appeal but both are rarely granted: 1. Petition for writ of mandamus or prohibition 2. A certification under 28 U.S.C. § 1292(b) by the trial judge that the order involves a controlling question of law about which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of litigation. See also: Annotation, Appealability of Discovery Orders as "Final" Decisions under 28 U.S.C. § 1291., 36 A.L.R. Fed. 763 (1978). In addition, some orders are deemed final for appeal because they did not affect the ongoing litigation, e.g., an award of fees under Rule 37(b)(2).

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