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REPLY filed by Barbara Cherry, Michael Evans, Texas Tech University Health Sciences Center (TTUHSC) re: 22 MOTION to Stay re 11 Motion to Dismiss for Failure to State a

Pickett v. Texas Tech University Health Sciences Center (TTUHSC) et al, No. 5:20-cv-00232-H-BQ (N.D. Tex.) · Dkt. 26 · 2021-04-16 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
AMY PICKETT,
Plaintiff,

§
§
§
v.
§
§
TEXAS TECH UNIVERSITY HEALTH
§
SCIENCES CENTER; BARBARA CHERRY, §
individually and in her official capacity as
Department Chair of Leadership Studies; and
MICHAEL EVANS, individually and in his
official capacity as Dean of School of Nursing,
Defendant.

Civil Action No. 5:20-CV-00232-H-BQ

DEFENDANTS’ REPLY IN SUPPORT OF
OPPOSED MOTION TO STAY DISCOVERY
TO THE HONORABLE D. GORDON BRYANT, JR.
Defendants Texas Tech University Health Sciences Center (TTUHSC), Barbara Cherry,
individually and in her official capacity as Department Chair of Leadership Studies, and Michael
Evans, individually and in his official capacity as Dean of School of Nursing respectfully file this Reply
in Support of their Opposed Motion to Stay Discovery, and respectfully show the Court as follows:
I. INTRODUCTION
On March 26, 2021, Defendants filed their Opposed Motion to Stay Discovery pending
resolution of their threshold claims regarding both sovereign and qualified immunities. As a state
entity, and state employees sued in their official capacities, Defendants assert sovereign immunity to
suit under the Eleventh Amendment. See Dkt. 12 at 16–18. Defendants Cherry and Evans also asserted
the defense of qualified immunity from suit. Id. at 15–16.
Plaintiff filed her Response to Defendants’ Opposed Motion to Stay Discovery (Response) on
April 2, 2021, asserting her opposition to the relief requested by Defendants—a stay of discovery prior

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to resolution of the threshold issues asserted in the Motion to Dismiss, in which Defendants have
demonstrated that dismissal of the claims against them is proper.
Because Plaintiff has not addressed the legal and factual justifications underlying Defendants’
Opposed Motion to Stay Discovery, and instead appears to respond to Defendants’ qualified
immunity defense and whether they have violated “clearly established” constitutional rights, Plaintiff
has not given the Court any basis to deny the relief requested and should proceed with the stay of
discovery.
II. ARGUMENT
Defendants have presented argument asserting both factual and legal considerations that
weigh in favor of the Court staying discovery while it considers Defendants’ arguments in their Motion
to Dismiss. Plaintiff’s Response appears to mainly oppose the defense of qualified immunity asserted
by Defendants Cherry and Evans. But Defendants’ Motion to Dismiss and the associated response
and reply have already been fully briefed and presented to this Court—further argument about why
the qualified immunity defense does not protect Cherry and Evans should not be considered by this
Court. Without citation to any authority, Plaintiff appears to argue that the mere fact she accuses
Defendants of violating her constitutional rights should be enough for this Court to overrule
Defendants’ request for a stay of discovery. Because Plaintiff has presented no valid justifications for
refusing the relief Defendants request, the Court should order a stay of discovery.
A. Plaintiff offers no authority in response to Defendants’ arguments supporting a stay.
Instead of stating any immediate need for discovery that cannot await a stay while the Court
addresses the threshold issues asserted in the Motion to Dismiss, Plaintiff continues her line of attack
against what she casts as an unfair entitlement to sovereign and qualified immunities on the part of
Defendants. The only mentions of discovery in the Response vaguely allude to Plaintiff’s desire for
“accountability” and “justice,” but do not cite to any governing authority. There is no case made here
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for why discovery needs to occur prior to a ruling on Defendant’s asserted immunities. Defendants
have asserted that staying discovery is prudent and justified at this juncture under binding case law.
See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 525–26 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817
(1982)) (“even such pretrial matters as discovery are to be avoided if possible, as ‘[i]nquiries of this
kind can be peculiarly disruptive of effective government’”); Zapata v. Melson, 750 F.3d 481, 484–85
(5th Cir. 2014) (quoting Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012)) (“One of the most salient
benefits of qualified immunity is protection from pretrial discovery, which is costly, time-consuming,
and intrusive.”) (internal quotation marks omitted). Plaintiff’s conclusory assertions that qualified and
sovereign immunities should not preclude discovery are not responsive to these arguments and should
be rejected by the Court.
B. Discovery will not aid in determining whether the allegedly illegal actions of Drs. Cherry
and Evans violated a “clearly established” constitutional right.
Whether a violation of Plaintiff’s constitutional rights, as alleged, is “clearly established” under
the principles of qualified immunities can easily be resolved without result to discovery. When, as here,
a defendant raises immunity from suit as a defense, “[d]iscovery . . . must not proceed until the district
court first finds that the plaintiff’s pleadings assert facts which, if true, would overcome the [immunity]
defense[.]” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir.1995) (reversing a district court’s
denial of a protective order intended to prevent discovery prior to consideration of a defendant's
motion to dismiss on qualified immunity grounds).
Plaintiff has pleaded specific factual allegations that allow this Court to easily determine on
the pleadings whether the alleged violations amount to a violation of clearly established law—they do
not. See Reichle v. Howards, 566 U.S. 658, 664 (2012). As Defendants asserted in their Brief in Support
of their Motion to Dismiss, dismissal from a higher education program on academic grounds will very
rarely implicate the strictures of due process. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 86
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(1978) (academic dismissals, as opposed to disciplinary dismissals, require “far less stringent
procedural requirements” under the Due Process Clause). Accordingly, Plaintiff has not demonstrated
that a stay of discovery should not be granted.
III. CONCLUSION & PRAYER
Defendants Texas Tech University Health Sciences Center (TTUHSC), Barbara Cherry,
individually and in her official capacity as Department Chair of Leadership Studies, and Michael
Evans, individually and in his official capacity as Dean of School of Nursing pray that this Court stay
discovery pending resolution of Defendants’ Motion to Dismiss.

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Respectfully submitted,
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
SHAWN COWLES
Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT
Chief for General Litigation Division
/s/ Cory A. Scanlon
CORY A. SCANLON
State Bar No. 24104599
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone (512) 463-2120
Facsimile: (512) 320-0667
cory.scanlon@oag.texas.gov
COUNSEL FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on April 16, 2021, a true and correct copy of the foregoing document was
served in compliance with the Federal Rules of Civil Procedure to the following:
Amy Pickett
PO Box 543
Buffalo Gap, Texas 79508
apickett1010@yahoo.com
(682) 258-4558

/s/ Cory A. Scanlon
CORY A. SCANLON
Assistant Attorney General

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