Case: 4:20-cv-00712-JAR Doc. #: 24 Filed: 02/05/21 Page: 1 of 7 PageID #: 146
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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` No. 4:20-CV-712 JAR
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`WILLIAM DANIEL KAVANAUGH,
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` Plaintiff,
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` v.
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`DUSTIN EDWARDS, et al.,
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` Defendants.
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`MEMORANDUM AND ORDER
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`Before the Court are plaintiff’s motions relative to attaining the identify of defendant John
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`Doe #1 in this action. Due to the foregoing reasons, the Court will deny plaintiff’s motion for
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`issuance of subpoenas, as well as his motion for leave to file an amended complaint. The Court
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`will, however, grant plaintiff’s motion for extension of time to file identifying information for
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`defendant John Doe #1.
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`Background
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`Plaintiff filed this action pursuant to 42 U.S.C. § 1983 on May 28, 2020. This was his third
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`attempt to hold defendants liable for alleged civil rights violations relating to a traffic stop in
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`Florissant, Missouri, in July of 2018, on the west-bound on-ramp onto Interstate 270 near
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`Florissant, Missouri. See Kavanaugh v. Edwards, No. 4:19-CV-3256 NCC (E.D.Mo.)1 and
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`Kavanaugh v. Lowery, No. 4:18-CV-2023 AGF (E.D.Mo.).2
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`1In Kavanaugh v. Edwards, No. 4:19-CV-3256 NCC (E.D.Mo), plaintiff’s prior civil rights action before this Court,
`plaintiff asserted that Detective Edwards conducted a warrantless search of the outside of plaintiff and his vehicle, an
`illegal seizure of plaintiff, and a false arrest/false imprisonment of plaintiff, believing that plaintiff was hiding drugs.
`The Court stayed these claims due to plaintiff’s ongoing state criminal action in St. Louis County Court pursuant to
`Wallace v. Kato, 549 U.S. 384, 393-94 (2007).
`2Plaintiff voluntarily dismissed Kavanaugh v. Lowery, No. 4:18-CV-2023 AGF (E.D.Mo.) before the case came to
`fruition.
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`Case: 4:20-cv-00712-JAR Doc. #: 24 Filed: 02/05/21 Page: 2 of 7 PageID #: 147
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`Plaintiff asserts that after the initial illegal search of his car, Detective Edwards decided to
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`do a body cavity search on plaintiff at the side of the road. By this time, a second officer had
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`arrived at the scene, Officer John Doe.
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`Plaintiff states that Detective Edwards told him that he was not allowed to do a body cavity
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`search in a public place and he then asked plaintiff to go to the Florissant Police Department so
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`that Edwards could conduct a body cavity search at the facility. Plaintiff refused to accompany
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`Detective Edwards or agree to a body cavity search because he was not under arrest.
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`According to plaintiff, Detective Edwards became angry at this response, and again
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`searched plaintiff’s vehicle, but found nothing illegal. Next, despite plaintiff’s refusal to consent
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`to a body cavity search, Detective Edwards took plaintiff to the side of Edwards’s car, while
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`plaintiff was still handcuffed. Detective Edwards allegedly unfastened plaintiff’s belt and pulled
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`down his pants and underwear. Plaintiff claims that Detective Edwards “used his hands, as well as
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`a cold metal object,” to conduct a body cavity search of plaintiff’s anus and penis. During this
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`incident, plaintiff states that Officer Doe #1 “stood by and watched.” Plaintiff states that it was
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`after this unlawful body cavity search that a second set of detectives came to the scene and
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`conducted a second illegal search of his vehicle and purportedly “found” drugs in his car. Plaintiff
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`was arrested at that time.
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`Based on these allegations, in this action, plaintiff asserts that Detective Edwards violated
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`his constitutional rights by performing an illegal search of his person. Plaintiff asserts that
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`Detective Edwards’ actions violated his Fourth Amendment rights.
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`As to Officer Doe #1, plaintiff asserts that Doe #1 failed to intervene and protect him
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`against Detective Edwards, even though Detective Edwards violated plaintiff’s rights “right in
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`front of him.” Specifically, plaintiff states that Officer Doe #1 did not protect him against Detective
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`2
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`Case: 4:20-cv-00712-JAR Doc. #: 24 Filed: 02/05/21 Page: 3 of 7 PageID #: 148
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`Edwards’ unreasonable body cavity search and alleged sexual assault. Instead, Officer Doe #1
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`“just stood by and watched.”
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`The Court reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915 for frivolousness,
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`maliciousness and for failure to state a claim on October 9, 2020. The Court issued process on
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`plaintiff’s claims against Detective Edwards in his individual capacity for allegedly violating is
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`Fourth Amendment rights by unlawfully doing a body cavity search on plaintiff at the side of the
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`road and/or purportedly sexually assaulting plaintiff. Additionally, the Court stated that plaintiff’s
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`allegations against John Doe #1, in his individual capacity for failing to intervene in the search,
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`also stated a claim for relief, but the Court was unable to issue process because plaintiff had not
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`provided a proper name or identifying information for John Doe #1.
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`In the October 9, 2020, Memorandum and Order, the Court ordered plaintiff to provide
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`identifying information for John Doe #1 or an address at which he may be served, within thirty
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`(30) days. Plaintiff was told that his failure to do so could result in a dismissal of defendant John
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`Doe #1 without prejudice.
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`Alias summons was executed on Dustin Edwards on December 17, 2020. Defendant
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`Edwards filed his answer to the complaint on January 7, 2021. Simultaneously with this
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`Memorandum and Order the Court is issuing a Case Management Order setting forth discovery in
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`this case.
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`Discussion
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`Plaintiff has filed three motions relative to attaining the identity of John Doe #1 in this
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`action. Before the Court is plaintiff’s motion for leave to file an amended complaint “after
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`reasonable discovery,” a motion for issuance of subpoenas relative to the officers at his traffic stop,
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`3
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`and a motion for extension of time to provide the proper name and service information for John
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`Doe #1. The Court will address each motion in turn.
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`A. Motion for Leave to File an Amended Complaint
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`Plaintiff seeks leave to amend his complaint “after reasonable discovery” in order to
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`ascertain the proper name and address of John Doe #1. Plaintiff outlines the procedures he has
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`gone through pursuant to the Freedom of Information Act to attain the proper name and address
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`of defendant John Doe #1. He asserts that he began requesting information from the Florissant
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`Police Department as early as July 27, 2018 about the identity of the officers involved in his traffic
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`stop.
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`The Court appreciates the lengths plaintiff has gone to an order to figure out identifying
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`information for defendant John Doe #1. However, at this point in the proceedings, plaintiff has not
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`presented the Court with a proposed amended complaint with the proper identifying information
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`as requested in the Court’s October 9, 2020 Memorandum and Order.
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`To obtain leave to file an amended complaint, “a party must submit the proposed
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`amendment along with its motion.” Clayton v. White Hall School Dist., 778 F.2d 457, 460 (8th
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`Cir. 1985); see Wolgin v. Simon, 722 F.2d 389, 395 (8th Cir. 1983) (“Absent some indication as to
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`what might be added to the complaint to make it viable, the [moving party] is not entitled to leave
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`to amend.”). At this time, the Court must deny plaintiff’s motion to amend his complaint, without
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`prejudice. The Court, however, has provided a date for amendment of pleadings within the Case
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`Management Order issued simultaneously with today’s Memorandum and Order.
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`B. Motion for Issuance of Subpoenas
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`Plaintiff has filed a motion for issuance of subpoenas. In his motion plaintiff asks the Court
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`to send him the following forms: “a notice of subpoenas and subpoenas.”
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`4
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`Plaintiff states that pursuant to Federal Rule of Civil Procedure 45 he wishes to subpoena
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`Chief of Police Timothy Fagan at Florissant Police Department to ascertain the names of not only
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`John Doe #1, but also the other two officers, besides Officer Dustin Edwards, who were at the site
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`of his arrest on July 27, 2018.
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`Generally, a party may not seek discovery from any source before the Rule 26(f)
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`conference, unless authorized by the Federal Rules of Civil Procedure, by stipulation, or by court
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`order. Fed. R. Civ. P. 26(d)(1). In determining whether to grant expedited discovery, courts apply
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`either a “good cause” standard or a preliminary injunction standard. Progressive Cas. Ins. Co. v.
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`F.D.I.C., 283 F.R.D. 556, 557 (N.D. Iowa 2012). While the Eighth Circuit has not expressly
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`adopted either standard, the majority of federal courts use the good cause standard. Id. “Under the
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`good cause standard, the party requesting expedited discovery must show that the need for
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`expedited discovery, in consideration of administration of justice, outweighs prejudice to the
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`responding party.” Cook v. Williams, 2009 WL 3246877, at *1 (E.D. Mo. 2009). Moreover, courts
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`typically deny motions for expedited discovery when the movant’s request is overly broad.
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`Monsanto Co. v. Woods, 250 F.R.D. 411, 413 (E.D. Mo. 2008).
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`Expediting the discovery process is not the norm. Progressive Cas. Ins. Co., 283 F.R.D. at
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`557. Good cause has been shown in a patent infringement case where a plaintiff needed to collect
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`seed samples before they were destroyed. See Monsanto, 250 F.R.D. at 413. Good cause has also
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`been shown in a case where the plaintiff was terminally ill and a deposition needed to be taken to
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`preserve his testimony. See Cook, 2009 WL 3246877, at *1. Expedited discovery has also been
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`granted in copyright cases involving illegal file sharing on the internet. See Paisley Park Enters.,
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`Inc. v. Ziani, 2018 WL 6567828, at *3 (D. Minn. 2018) (“Expedited discovery for purposes of
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`serving a complaint is particularly relevant in copyright cases involving file sharing because as a
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`Case: 4:20-cv-00712-JAR Doc. #: 24 Filed: 02/05/21 Page: 6 of 7 PageID #: 151
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`practical matter, copyright owners cannot deter unlawful peer-to-peer file transfers unless they
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`learn the identities of the persons engaged in that activity”).
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`The Court finds that plaintiff has not shown good cause to expedite discovery in this case.
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`There has been no showing that evidence might be destroyed or otherwise lost if expedited
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`discovery is not granted. He has also failed to demonstrate there are no other reasonable means to
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`identify defendant John Doe #1. Further, unlike in a copyright infringement case, plaintiff has not
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`alleged that he is suffering an ongoing harm that can only be deterred through identification of the
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`persons engaged in that activity. Moreover, as stated infra, the Court will grant plaintiff’s motion
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`for extension of time to provide defendant John Doe #1’s proper name and address.
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`C. Motion for Extension of Time
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`Plaintiff has filed a motion for extension of time to provide the proper name and last known
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`address of John Doe #1. As noted above, the Court is issuing simultaneous with this Memorandum
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`and Order a Case Management Order governing discovery in this case.
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`The Case Management Order designates that all motions for joinder of additional parties
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`or amendment of pleadings shall be filed no later than April 8, 2021. Additionally, the Case
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`Management Order dictates that each party shall disclose to the other party all persons “having
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`knowledge or information of the facts giving rise to plaintiff’s claim.” The Court will assume that
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`John Doe #1 will be one of the persons designated by defendant Dustin Edwards as an individual
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`having knowledge of the events giving rise to plaintiff’s claims.
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`Although defendant Edwards is not obligated to provide John Doe #1’s home address to
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`plaintiff, if he is still employed by the Florissant Police Department, he is obligated to designate
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`such. If he is no longer employed by the Police Department, defense counsel may, in lieu of
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`Case: 4:20-cv-00712-JAR Doc. #: 24 Filed: 02/05/21 Page: 7 of 7 PageID #: 152
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`providing an address to plaintiff, provide an address to the Court at which defendant John Doe #1
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`may be found on an ex parte basis so that service may be accomplished.
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`Given the fact that plaintiff has until April 8, 2021, to join parties or amend pleadings, the
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`Court will grant plaintiff’s motion for extension of time to provide the Court with John Doe #1’s
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`proper name and address at which he may be served.
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`Accordingly,
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`IT IS HEREBY ORDERED that plaintiff’s motion for leave to file an amended complaint
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`[Doc. #8] is DENIED without prejudice.
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`IT IS FURTHER ORDERED that plaintiff’s motion for issuance of subpoenas [Doc.
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`#11] is DENIED.
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`IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to provide
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`identifying information for John Doe #1 [Doc. #12] is GRANTED.
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`IT IS FURTHER ORDERED that plaintiff shall provide the Court, no later than April 8,
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`2021, the proper name of John Doe #1, as well as the address at which defendant John Doe #1 may
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`be served. Plaintiff’s failure to provide this information by April 8, 2021, will result in
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`dismissal of plaintiff’s failure to intervene claim against John Doe #1 in his individual capacity,
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`without prejudice.
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`A Case Management Order will be issued simultaneously with this Memorandum and
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`Order.
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` Dated this 5th day of February, 2021.
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`JOHN A. ROSS
`UNITED STATES DISTRICT JUDGE
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`7
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