IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 95-31235 Summary Calendar _____________________

ELLIS GUILLOT, Plaintiff-Appellee

versus

ED DAY, Warden; M R WINSTEAD, JR; LYN H PIGOTT

Defendants-Appellants

_______________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (94-CV-1832-A) _________________________________________________________________ August 6, 1996 Before KING, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:* Defendants Ed Day, Sgt. M.R. Winstead, Jr., and Lyn H.

Pigott appeal the district court’s decision requiring them to

comply with general discovery requests in a § 1983 action filed

by Ellis Guillot.

I. Background

Guillot, Louisiana prisoner #87428, proceeding pro se and in

forma pauperis, filed this civil rights complaint under 42 U.S.C.

_____________________

*Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. § 1983 against Day, warden of the Washington Correctional

Institute (“WCI”), Winstead, Pigott, K. McGinnis, and Dr.

Visitacion Ramirez, all WCI employees, alleging that they

violated Guillot’s First and Fourteenth Amendment rights. In the

defendants’ answer, they raised, inter alia, a qualified immunity

defense. Following a preliminary conference, the magistrate

judge appointed counsel to represent Guillot and all parties

agreed to proceed before the magistrate judge under

(c). Through counsel, Guillot filed an amended complaint

against Richard L. Stadler, Secretary of the Louisiana Department

of Public Safety and Corrections, Day, Winstead, and Pigott,

alleging that they had violated his First and Fourteenth

Amendment rights by denying him access to the courts and

retaliating against him for filing grievances. Day, Winstead and

Pigott1 filed a motion for summary judgment which was taken under

advisement. At the same time, the magistrate judge ordered the

defendants to comply with the Guillot’s discovery requests within

two weeks. Day, Winstead, and Pigott then filed a motion to

quash notice of deposition and the subpoena duces tecum and, on

the same day, filed a motion for a protective order so that they

would not have to comply with the discovery request until the

court had ruled on their qualified immunity defense. Day,

1 Service was never made on Stadler.

2 Winstead, and Pigott argued that the deposition date was beyond

the cut-off dates prescribed by the court and that their defense

of qualified immunity was pending. The magistrate judge denied

the motion for the protective order without written reasons.

Day, Winstead, and Pigott timely appealed the order of the

magistrate judge verbally entered on October 25, 1995, and

entered on the record on November 16, 1995, requiring defendants

to comply with general discovery requests.

II. Discussion

There are three issues that need to be resolved. The first

is whether this court has jurisdiction over this appeal. The

second issue is whether Guillot has met the heightened pleading

requirement by pleading sufficient facts, which, if taken as

true, would overcome the defense of qualified immunity. The last

issue which needs to be resolved is whether the discovery order

is avoidable or overly broad.

We review the district court’s order for discovery for an

abuse of discretion. “It is well-established that control of

discovery is committed to the sound discretion of the district

court and that we will reverse its discovery rulings only if they

are arbitrary or clearly unreasonable.” Williamson v. United

States Dep’t of Agric.,

(5th Cir. 1987).

1. Appellate Jurisdiction

3 Day, Winstead, and Pigott contend that this court has

jurisdiction to review the magistrate judge’s discovery order

because the order has effectively denied them the benefits of

qualified immunity and, therefore, is an appealable interlocutory

order. Guillot contends that we are without jurisdiction to

review the discovery order because the order was “specifically

tailored to uncover only facts necessary to rule on the

defendants’ immunity claim.”

“Ordinarily, an order compelling limited discovery is

interlocutory and not appealable under the final judgment rule.”

Lion Boulos v. Wilson,

(5th Cir. 1987)(citing

). However, in Mitchell v. Forsyth,

(1985) the Supreme Court held that orders denying a substantial

claim of qualified immunity are immediately appealable under the

collateral-order doctrine. Qualified immunity is an entitlement

to immunity from suit, not a mere defense to liability.

. Therefore, if a qualified immunity defense has not been

ruled on and the discovery order is not limited, the defendants

are effectively denied their qualified immunity defense and thus

the order is immediately appealable. Wicks v. Mississippi State

Employment Servs.,

(5th Cir.), cert. denied,

(1995). “A party asserting a qualified immunity

defense is not immune from all discovery, only that discovery

which is avoidable or overly broad.” Id. When the magistrate

judge cannot rule on the immunity defense without first

4 clarifying the facts relating to the immunity, and when a

discovery order is narrowly tailored to uncover only those facts

needed to rule on the immunity claim, the order is neither

avoidable or overly broad and, thus, not appealable. Id. In

this case there is nothing limiting the discovery order to facts

needed to rule on the qualified immunity defense; therefore, it

denies Day, Winstead, and Pigott the benefits of qualified

immunity. Consequently, we have jurisdiction to examine the

discovery order.

2. The Heightened-Pleading Requirement

Before addressing the scope of the discovery order, we must

first consider whether Guillot’s pleadings assert facts which, if

true, would overcome the defense of qualified immunity. Schultea

v. Wood,

(5th Cir. 1995)(en banc); Wicks,

. If the complaint falls short of this heightened

pleading standard, the magistrate judge should rule on the

pending motion before any discovery is allowed. Schultea,

; Wicks,

. “The allowance of discovery

without this threshold showing is immediately appealable as a

denial of the true measure of protection of qualified immunity.”

Wicks,

. If the complaint satisfies the heightened

pleading standard, then the magistrate judge may permit limited

discovery as necessary to clarify the facts upon which the

immunity defense turns. Schultea,

; Wicks, 41

5 F.3d at 995.

Day, Winstead, and Pigott argue that Guillot has not pled

sufficient facts that, if true, would overcome their claims of

qualified immunity. Guillot argues that the magistrate judge’s

order implicitly denied Day, Winstead, and Pigott’s claim of

qualified immunity, that he satisfied the heightened pleading

standard, and that, consequently, the case should be remanded.

Alternatively, Guillot asks the court to remand the case to the

magistrate judge for an explicit ruling on the defendants’ claims

of qualified immunity or to allow the magistrate judge to tailor

the discovery order to the question of qualified immunity.

a. Denial of access to the courts claim

In his amended complaint, Guillot alleged that he has

“effectively” been denied access to the courts because Day and

Pigott have prevented him from participating in the

Administrative Remedy Procedure (“ARP”) process and thus,

prevented him from exhausting his administrative remedies.

Guillot elaborated in his opposition to the summary judgment

motion that Day and Pigott “obstructed” his access to the courts.

A denial-of-access claim is valid only if the litigant makes

a showing that his legal position was prejudiced by the

deprivation. Henthorn v. Swinson,

(5th Cir.),

cert. denied,

(1992). Guillot has not alleged

specific facts showing that his legal position has been

6 prejudiced. Absent the allegation of a violation of a

constitutional right, Guillot has failed to allege a valid claim

against Day and Pigott on that ground.

b. Retaliation Claims

In his complaint, Guillot alleged that Winstead and Pigott

retaliated against him when they filed their disciplinary

reports. To prove a retaliation claim a plaintiff must either

produce direct evidence of motivation or allege a chronology of

events from which retaliation may plausibly be inferred. Woods

v. Smith,

(5th Cir. 1995), cert. denied,

(1996). An act motivated by retaliation for the

exercise of a constitutionally protected right is actionable,

even if the act, when taken for a different reason, might have

been legitimate. Id. at 1165. “A prison official may not

retaliate against or harass an inmate for exercising the right of

access to the courts, or for complaining to a supervisor about a

guard’s misconduct.” Id. at 1164. “The plaintiff must be

prepared to establish that but for the retaliatory motive the

complained of incident . . . would not have occurred.” Id. at

1166. Guillot’s pleadings contain specific allegations, which,

if taken as true, would establish a chronology of events

regarding actions taken by Winstead from which retaliation may be

inferred. Guillot did not plead specific allegations against

Pigott, however, which would establish any chronology of events

7 that would suggest retaliation. Therefore, Guillot has satisfied

the heightened pleading standard as to this claim against

Winstead.

3. The Discovery Order

As to Guillot’s retaliation claims, the question then

becomes whether the discovery order issued prior to the court’s

ruling on the qualified immunity defense was avoidable or overly

broad. See, e.g., Gaines v. Davis,

(5th Cir.

1991).

Guillot’s interpretation of the magistrate judge’s order as

“narrowly tailored” is not supported by the record. The notice

of deposition for Winstead, Pigott, and two other WCI employees

did not indicate that the scope of the deposition would be

limited. The accompanying subpoena duces tecum required the

parties to produce a host of items related to Guillot, related to

the ARP, and the issuance of disciplinary reports. Following an

in-chambers conference, which is not included in the record, the

magistrate judge ordered Day, Winstead, and Pigott to respond to

Guillot’s outstanding discovery request.

On its face, the discovery order appears overly broad. We

find that the district court abused its discretion by ordering

discovery in this case. Accordingly, we vacate the discovery

order and remand this case to the district court for further

proceedings consistent with this opinion. On remand the

8 magistrate may order limited discovery for the purpose of

clarifying facts concerning qualified immunity if it is deemed

necessary. See, e.g., Gaines,

.

III. Conclusion

For the foregoing reasons, we VACATE and REMAND.

9