United States District Court, S.D. Mississippi, Northern Division
P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE.
Tina Bianchini asks the Court to allow her to conduct
discovery  to respond to Defendant Lee Vance's motion
for summary judgment  based on qualified immunity. In
addition, Vance seeks to strike  Bianchini's Third
Amended Complaint, which was erroneously filed in response to
the Court's request for a Rule 7(a) reply. For the
reasons that follow, Vance's motion to strike  is
granted; Bianchini's motion for discovery  is
granted; and Vance's motion for summary judgment  is
terminated without prejudice to his right to refile following
Facts and Procedural History
facts underlying this lawsuit were set forth in the
Court's August 4, 2017 Order granting in part and denying
in part Defendants' motions to dismiss. Order . In
the Order, the Court dismissed all claims except
Bianchini's equal-protection claim against Vance in his
individual capacity. In very general terms, Bianchini, a
white former police officer, claims Jackson Police Department
Chief Lee Vance forced her to resign following her arrest for
domestic violence. She insists Vance's actions were
motivated by race and sex, because Vance retained at least
one similarly situated African-American male.
the ruling on the motions to dismiss, Vance moved for an
order requiring Bianchini to file a Rule 7(a) reply detailing
her claims against him in his individual capacity. Bianchini
did not respond, and on September 22, 2017, the Court ordered
Bianchini to docket the Rule 7(a) reply within thirty days
and stayed discovery, subject to the filing of a
qualified-immunity motion. Order .
of filing a Rule 7(a) reply, Bianchini filed a Third Amended
Complaint , despite being denied leave to do so in the
Court's August 4, 2017 Order . Vance promptly moved
to strike . Bianchini acknowledged her error, admitting
she “should have called [it] a Rule 7(a) Reply.”
Pl.'s Resp.  at 2. But as Vance points out, the
filing goes beyond adding facts to support her
equal-protection claim. For example, the Third Amended
Complaint names Vance in his individual and official
capacities. See 3d Am. Compl.  at 2.
are further complicated by the fact that Vance filed a motion
for summary judgment  based on qualified immunity,
addressing allegations raised in the Third Amended Complaint.
See Mot.  at 2-3. And for her part, Bianchini
filed a Rule 56(d) motion , seeking an opportunity to
conduct discovery to fully respond to Vance's motion.
a threshold matter, the Court agrees that Bianchini should
not have filed a Third Amended Complaint. Her October 30,
2017 filing  should have been titled a “Rule 7(a)
Reply, ” and the Clerk will be directed to amend the
docket text. That filing  is not the operative complaint.
Vance's motion to strike is granted to the extent that an
Amended Complaint was impermissibly filed. The filing 
will be treated, and referred to, as a Rule 7(a) reply; the
additional facts alleged in support of the equal-protection
claim against Vance in his individual capacity are properly
before the Court. With that issue resolved, the Court turns
to Bianchini's Rule 56(d) motion.
judgment is warranted under Federal Rule of Civil Procedure
56 when evidence reveals no genuine dispute regarding any
material fact and that the moving party is entitled to
judgment as a matter of law. Though a party may seek summary
judgment at any time, Rule 56(d)(1) permits the Court to
defer considering a summary-judgment motion or deny it when a
nonmovant “shows by affidavit or deceleration that, for
specified reasons, it cannot present facts essential to
justify its opposition” to the motion. The Court may
“allow time to obtain affidavits or declarations or to
take [additional] discovery” or enter appropriate
orders. Fed.R.Civ.P. 56(d)(2)(3). The decision to grant or
deny a Rule 56(d) motion is within the sound discretion of
the Court. Am. Family Life Assurance Co. of Columbus v.
Biles, 714 F.3d 887, 894 (5th Cir. 2013). But Rule 56(d)
motions are “‘broadly favored and should be
liberally granted' because the rule is designed to
‘safeguard non-moving parties from summary judgment
motions that they cannot adequately oppose.'”
Raby v. Livingston, 600 F.3d 552, 561 (5th Cir.
2010) (quoting Culwell v. City of Fort Worth, 468
F.3d 868, 871 (5th Cir. 2006)).
addition, as pointed out by Vance, the Fifth Circuit has
established a procedure “under which a district court
may defer its qualified immunity ruling if further factual
development is necessary to ascertain the availability of
that defense.” Backe v. LeBlanc, 691 F.3d 645,
648 (5th Cir. 2012); see Def.'s Resp.  at 3
(collecting cases). “[A] district court must first find
that the plaintiff's pleadings assert facts which, if
true, would overcome the defense of qualified
immunity.” Backe, 691 F.3d at 648 (internal
quotation marks and citation omitted). Then, “if the
court remains unable to rule on the immunity defense without
further clarification of the facts, it may issue a discovery
order narrowly tailored to uncover only those facts needed to
rule on the immunity claim.” Id.
the first step has already occurred here. The Court
previously denied Vance's motion to dismiss the
equal-protection claim. So, the question for today is whether
the Court requires further clarification of the facts to rule
on qualified immunity.
motion for summary judgment, Vance sets forth three primary
arguments: (1) he is not a final decisionmaker and therefore
cannot be liable under § 1983; (2) Bianchini cannot show
that similarly situated individuals were treated differently;