Free Stipulation - District Court of Colorado - Colorado

Case 1:04-cv-00701-LTB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-cv-01114-WDM-BNB TERRY WILSON, Plaintiff, v. JAMES CARRERO, MICHAEL GARNSEY, HOBSON, BRANDON WHISKER, RENEE YOUNG, J. GRAYMSON ROBINSON, and "JOHN/JANE DOE," Defendants.

DEFENDANTS' RENEWED JOINT MOTION TO STAY DISCOVERY BASED UPON QUALIFIED IMMUNITY ______________________________________________________________________________ Defendants, MICHAEL GARNSEY, BRANDON WHISKER, J. GRAYSON ROBINSON, JAMES CARRERO, and RENE ROBINSON (incorrectly designated in the caption as "RENEE YOUNG") ("Defendants"), by and through their undersigned counsel of record, hereby move this Court for an order staying discovery against these Defendants as each has asserted he or she is entitled to qualified immunity. AND IN SUPPORT THEREOF, Defendants state as follows: 1. Pursuant to D.C.COLO.LCivR 7.1(A), defense counsel has conferred with pro se

Plaintiff who objects to the relief requested herein. [***LFT MSG on 6/2]

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2.

Each of the Defendants has moved for summary judgment based on the Prison

Litigation Reform Act ("PLRA"), which necessarily bars Plaintiff's lawsuit, as well as qualified immunity. Specifically, under the qualified immunity analysis, Plaintiff cannot demonstrate that (1) the Defendants' actions violated a constitutional or statutory right, and (2) the right(s) was/were clearly established and reasonable persons in the Defendants' positions would have known their conduct violated that right. See, Garrett v. Stratman, 254 F.3d 946, 951 (10th Cir. 2001) (citing Cruz v. City of Laramie, 239 F.3d 1183, 1187 (10th Cir. 2001)); see also, Migneault v. Peck, 158 F.3d 1131, 1139 (10th Cir. 1998) (citing Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997)). Thus, each of the Defendants, in his or her individual capacity, is entitled to qualified immunity and, until the Court determines this threshold issue, the Court should stay all discovery. 3. Doctrines of immunity are well recognized in a variety of contexts. As the

Supreme Court has noted, "[o]ne of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991); see also, Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). Therefore, public officials who assert absolute or qualified immunity are entitled to have such immunity determined as a threshold issue of law before incurring the burdens of litigation associated with discovery and trial. See, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) ("The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."); Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396

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(1982). This is especially true where a determination of the official's qualified immunity "is dispositive" of the plaintiff's claims. See, Saucier v. Katz, 533 U.S. 194, 200; 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). 4. The purpose of protecting defendants who are immune from the burdens of trial

and pre-trial litigation is particularly important when those defendants are public officials. See, Harlow, 457 U.S. at 816. In such cases, the public has a significant interest both in preserving public funds and in avoiding unnecessary interference with governmental activities and public services. See, Id. at 817. As noted by the Supreme Court, the intangible costs of forcing public entities or officials to defend lawsuits include "distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Id. at 816. 5. Based on these principles, the Tenth Circuit has held that discovery and other

litigation activities should be stayed or limited as necessary to determine issues regarding immunity before reaching any other substantive issues. "Discovery should not be allowed until the court resolves the threshold question whether the law was clearly established." Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992), cert. denied, 514 U.S. 1015 (1995); Sawyer v. County of Clear Creek, 908 F.2d 663, 667 (10th Cir. 1990) ("A federal lawsuit is not a fishing expedition." Plaintiff not allowed to conduct discovery in order to allege violation of clearly established right because discovery without sufficient allegations to support claim would defeat purpose of qualified immunity); Zamora v. City of Belen, 229 F.R.D. 225, 226 (D.N.M. 2005) ("Because qualified immunity protects against the burdens of discovery as well as trial, the

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Supreme Court has emphasized that the trial court should resolve the issue before discovery if at all possible."). 6. The United States Supreme Court has made it clear that the defense of qualified

immunity "is meant to give government officials a right, not merely to avoid `standing trial,' but also to avoid the burdens of `such pretrial matters as discovery, as inquiries of this kind can be peculiarly disruptive of effective government.'" Garrett v. Stratman, 254 F.3d 946, 951 (10th Cir. 2001) (citing Behrens v. Pelletier, 516 U.S. 299, 305, 116 S. Ct. 834, 133 L. Ed. 2d 773 (1996)). "Thus, when facing a qualified immunity defense that could be resolved as a matter of law, a district court has an obligation to determine this threshold issue before allowing discovery to proceed." Raines v. Antonio, 2002 U.S. Dist. LEXIS 5588, *6 (D. Kan. 2002) (citing Harlow, 457 U.S. at 818). 7. Furthermore, the Court has "considerable discretion over the timing of

discovery." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Coors, 357 F.Supp.2d 1277, 1280 (D. Colo. 2004) (citing United States v. Evans & Assoc. Construction Co., Inc., 839 F.2d 656, 660 (10th Cir. 1988); Fed.R.Civ.P. 26(c) (permitting the court to "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense"). In the present case, Plaintiff's right to discovery before this Court rules on Defendants' Motions for Summary Judgment should be stayed because the Court has sufficient information before it upon which to rule, and any requested discovery will not produce facts necessary to defeat the motion, i.e., facts showing that Defendants violated Plaintiff's constitutional rights. See, Sprague v. Brook, 149 F.R.D. 575, 577 (N.D. Ill. 1993) (citing First

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Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)); Patterson v. United States Postal Serv., 901 F.2d 927, 929 (11th Cir. 1990). 8. Based on the foregoing, and because each of the Defendants has asserted qualified

immunity, this Court should stay discovery pending determination of this threshold issue. WHEREFORE, Defendants respectfully request that this Court stay discovery in the above-captioned case pending its determination of the threshold issue of qualified immunity as asserted by each of the Defendants.

Respectfully submitted,

s/ Gillian M. Fahlsing Gillian M. Fahlsing Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] Counsel for Defendant Rene Robinson (f/k/a "Young")

s/ L. Cary Unkelbach L. Cary Unkelbach Asst. County Attorney, Arapahoe County 5334 South Prince Street Littleton, CO 80166-0001 Telephone: (303) 795-4639 FAX: (303) 738-7836 E-mail: [email protected] Counsel for Defendants Garnsey, Whisker, and J. Grayson Robinson

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s/ William T. O'Connell William T. O'Connell, III Wells, Anderson & Race, LLC 1700 Broadway, Suite 1020 Denver, CO 80290 Telephone: (303) 830-1212 FAX: (303) 830-0898 E-mail: [email protected] Counsel for Defendant Carrero

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 6th day of June, 2006, I electronically filed a true and correct copy of the above and foregoing DEFENDANTS' RENEWED JOINT MOTION TO STAY DISCOVERY BASED UPON QUALIFIED IMMUNITY with the Clerk of Court using the CM/ECF system, and I hereby certify that I have mailed or served the foregoing to the following non CM/ECF participants via U.S. Mail, first class postage pre-paid, addressed to: Terry Wilson, Pro Se 3555 South Pennsylvania, #202 Englewood, CO 80113

s/ Kathleen Bertz

00226227

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