In light of these precedents, I am deeply disturbed by the trend in our more recent cases, seeming to rule out categorically a trial judge's discretion to order such limited discovery, even in cases where he concludes it will be of genuine assistance and is not being pursued simply to harass the defendant. In so doing, we run the risk of applying the heightened pleading standard with needless insensitivity to both a legitimate plaintiff's plight, and to a district judge's perceptiveness in distinguishing a legitimate plaintiff from a frivolous one. In
Martin v. Malhoyt, the panel reversed the district court's limited discovery order on the grounds that the plaintiffs had not made out even a
prima facie showing of their claim that the defendant police official had countenanced a pattern of illegal police activity.
830 F.2d at 257. More recently, in
Whitacre v. Davey, another panel said that the “degree of specificity needed to make out a Title VII or statutory age discrimination
prima facie case” did not meet the heightened pleading standard “when the constitutional tort alleged is of the same discrimination genre covered by the antidiscrimination statute.”
890 F.2d at 1171. Since the Title VII
prima facie case is “composed of only circumstantial evidence, and not overwhelming circumstantial evidence at that,” it does not meet the “constitutional” heightened pleading standard applied in qualified immunity cases.
Id. at 1171. And, additionally, absent a plaintiff's allegation of direct evidence of unconstitutional intent, “his claim must be dismissed immediately,” that is, without even limited discovery.
Id. at 1171 n. 4.