Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT

Defendants United States of America ("United States"), Robert A. Hood, James Burrell, David Duncan, C. Chester, and J. C. Zuercher (collectively "the Federal Officers"), by and through undersigned counsel, hereby file this Motion for Leave to File Motion for Summary Judgment. Defendants request that the Court accept and adjudicate the tendered Motion for Summary Judgment in accordance with Fed. R. Civ. P. 56. Pursuant to D.C.COLO.LCivR 7.1A, undersigned counsel conferred with Carmen Reilly, counsel for Plaintiff. Ms. Reilly represents that Plaintiff opposes this motion. In support of this motion, Defendants state as follows: BACKGROUND 1. This Court initially established a deadline for the parties to file dispositive

motions in the Scheduling Order entered on January 18, 2005. (Docket No. 121). Under the terms of the Scheduling Order, the deadline for parties to file dispositive motions was August 8,

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2005. (Id.) 2. On February 1, 2005, Magistrate Judge Coan entered an Order staying discovery

in this case pending a decision on Defendants' Motions to Dismiss the Second Amended Complaint filed Pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) (hereinafter "Motions to Dismiss the Second Amended Complaint"). (Docket No. 126). This February 1, 2005 Order required the parties to jointly submit a revised Scheduling Order after adjudication of Defendants' Motions to Dismiss the Second Amended Complaint. (Id.) 3. On September 27, 2005, the Court issued an Order holding that the Second

Amended Complaint failed to satisfy the requirements of Fed. R. Civ. P. 8(a). (Docket No. 158). The Court ordered Plaintiff to file a Third Amended Complaint. (Id.) The Court accordingly denied Defendants' pending Motions to Dismiss the Second Amended Complaint, but also contemplated that Defendants would have an opportunity re-file these motions after Plaintiff filed his Third Amended Complaint. (Id.) 4. On October 17, 2005, Plaintiff served opposing counsel with his Third Amended

Complaint raising claims against the United States of America and the Federal Officers. (Docket No. 160). 5. On October 31, 2005, Defendants filed Motions to Dismiss the Third Amended

Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) (hereinafter "Motions to Dismiss the Third Amended Complaint"). (Docket No. 162 and 163). 6. On May 9, 2006, the parties had filed a Joint Motion to Vacate and Re-Set Trial

Date. (Document 185). In this motion, the parties jointly requested that the Court reset the July 11, 2006 trial date because discovery in this action had been stayed since February 1, 2005. (Id.) 2

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7.

On May 11, 2006, the Court ruled on Defendants' Motions to Dismiss the Third

Amended Complaint. The Court denied the Motion to Dismiss filed by the United States, and the Court granted in part and denied in part the Motion to Dismiss filed by Hood, Burrell, Duncan, Chester and Zuercher. (Document 186). 8. On May 12, 2006, the Court denied the parties' Joint Motion to Vacate and Re-Set

Trial Date, stating the parties should be able to complete discovery prior to trial set for July 11, 2006 because the issues set for trial are not complex. (Document 189). In this May 12, 2006 Order, the Court also ruled that "the stay of discovery is lifted." (Id. at 2). 9. On May 16, 2006, Magistrate Judge Coan issued an Order setting scheduling and

status conference for May 24, 2006, following "Judge Krieger's order of May 12, 2006 lifting the stay on discovery and setting this matter for trial to begin July 11, 2006." (Docket No. 191) (emphasis added). The Magistrate Judge's May 16, 2006 Order further stated that "Any previous order of the magistrate judge regarding the submission date of an amended scheduling order after ruling on the dispositive motion is vacated. All parties may begin discovery necessary for trial forthwith." (Id.) 10. At a hearing held on May 22, 2006, this Court stated as follows: "What you are

bypassing is there will be no more dispositive motions, no motions for summary judgment. We're going to trial." (Docket No. 204, at 17-18). ARGUMENT For the reasons set forth below, Defendants request leave of Court to file a Motion for Summary Judgment on the claims raised against them by the Third Amended Complaint.

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A.

The Defense of Qualified Immunity May be Raised by the Federal Officers at Successive Stages in This Litigation. The primary purpose of qualified immunity is "to protect public officials from undue

interference with their duties and from potentially disabling threats of liability . . . ." Elder v. Holloway, 510 U.S. 510, 514 (1994) (citation omitted). Qualified immunity represents a defense from suit, not just liability. Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982) (qualified immunity protects from ordinary burdens of litigation, including far-reaching discovery); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Seigert v. Gilley, 500 U.S. 226, 232-33 (1991). A public official asserting the defense of qualified immunity may raise the defense at successive stages of litigation, and significantly, has an independent entitlement to file a motion to dismiss and a motion for summary judgment on the issue of qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 306-07 (1996) (defendant may raise qualified immunity defense at successive stages; defendant is entitled to appeal denial of summary judgment despite previous, unsuccessful appeal of denial of motion to dismiss); Robbins v. Wilkie, 433 F.3d 755, 763-74 (10th Cir. 2006) (defendants' failure to appeal the district court's denial of dismissal on qualified immunity does not divest the appeals court of jurisdiction to consider defendants' appeal of denial of summary judgment). Moreover, there are certain instances where the defense of qualified immunity may not be subject to resolution on a motion to dismiss, but summary judgment would nonetheless be proper. As the Supreme Court reasoned in Behrens: [T]he legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for `objective legal reasonableness.' On 4

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summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry. It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment. Behrens, 516 U.S. at 309 (emphasis in the original). In the case at bar, the Federal Officers judiciously did not raise the defense of qualified immunity in their Motion to Dismiss the Third Amended Complaint for all of the Bivens claims asserted against them. As noted above, some claims are more appropriately challenged in a summary judgment motion under Fed. R. Civ. P. 56 than in a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Because of the way that the Third Amended Complaint was drafted, the Federal Officers did not raise the defense of qualified immunity for any the following claims: (1) the Eighth Amendment claim challenging Plaintiff's conditions of confinement at the ADX; (2) the due process claim challenging Plaintiff's transfer to and continued confinement at the ADX; and (3) the equal protection claim challenging Plaintiff's non-participation in the step-down program at ADX. However, the Federal Officers now believe that these claims (as well as Plaintiff's Eighth Amendment deliberate indifference claim against Hood, Burrell, and Duncan) are subject to summary disposition under Fed. R. Civ. P. 56. Accordingly, the Federal Officers request leave of the Court to file the tendered Motion for Summary Judgment so that they may assert the defense of qualified immunity on all remaining claims raised against them.

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B.

The Court Should Grant the Federal Officers Leave to File a Motion for Summary Judgment So That They May Raise the Defense of Qualified Immunity Prior to Trial. Fed. R. Civ. P. 56(a) permits a motion for summary judgment to be filed "at any time

after the expiration of 20 days from the commencement of the action." Williams v. Valencia County Sheriff's Office, 33 Fed. Appx. 929, 931 (10th Cir. 2002). The court may set reasonable deadlines for dispositive motions as an exercise of its authority to control its docket. See, e.g., Landis v. North Am. Co., 299 U.S. 248, 254 (1936) (court has inherent power "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants"); see also Kennedy v. City of Cleveland, 797 F.2d 297, 300-01 (6th Cir. 1986) (holding that district court may set deadlines for motions asserting qualified immunity). In the case at bar, there is no extant deadline for filing dispositive motions. Although the Magistrate Judge entered a Scheduling Order on January 18, 2005 setting a dispositive motion deadline of August 8, 2005, discovery was stayed in this case on February 1, 2005. No revised Scheduling Order was ever submitted. Nor did the Court ever order the parties to file a revised Scheduling Order at any point following the September 27, 2005 Order. Although the Magistrate Judge issued an Order on May 16, 2006 in which she set a scheduling conference for May 24, 2006 and requested that the parties submit an Amended Scheduling Order (Docket No. 191), the Court withdrew the reference from the Magistrate Judge before that scheduling conference could be held (Docket No. 192), and the Magistrate Judge subsequently vacated that scheduling conference (Docket No. 193). Thus, because there is no extant deadline for filing dispositive motions, the Federal Officers have not missed any court-set deadline for filing a motion for summary judgment. 6

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Counsel for both Defendants and Plaintiff reasonably understood that discovery was stayed and they were under no obligation to submit a proposed revised Scheduling Order until the Court adjudicated the merits of Defendants' Motions to Dismiss the Second Amended Complaint. Although the Court denied the Motions to Dismiss the Second Amended Complaint on September 27, 2005, the Court did not reach the merits of the Rule 12(b)(1) Motion to Dismiss or the Rule 12(b)(6) Motion to Dismiss. Instead, the Court determined that the Second Amended Complaint did not comply with Fed. R. Civ. P. 8(a). Plaintiff was given the opportunity to file a Third Amended Complaint in compliance with Rule 8(a) and to correct the deficiencies identified by the Court in its September 27, 2005 Order. The Court's September 27, 2005 Order also contemplated that Defendants would re-file motions to dismiss in response to that Third Amended Complaint. (Docket No. 158) ("The Court anticipates that in response to more focused pleading by the Plaintiff, the Defendants will file a more focused motion or motions to dismiss."). Defendants did not view the Court's September 27, 2005 Order as an "adjudication" of the Motions to Dismiss the Second Amended Complaint such that it served to automatically either lift the stay on discovery or trigger their obligation to consult with Plaintiff's counsel regarding submission of a revised Scheduling Order. CONCLUSION Defendants respectfully request the opportunity to file the tendered Motion for Summary Judgment.

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Respectfully submitted this 17th day of July, 2006. WILLIAM J. LEONE United States Attorney s/ Amanda Rocque Amanda Rocque Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0109 Facsimile: (303) 454-0404 Email: [email protected] Attorneys for Defendant

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CERTIFICATE OF MAILING I hereby certify that on this 17th day of July, 2006, I electronically filed the foregoing MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Carmen Nicole Reilly [email protected] [email protected] John Robert Riley [email protected] I hereby certify that on this 17th day of July, 2006, I served the foregoing on the following MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT non-CM/ECF participants via electronic mail: Christopher Synsvoll, Esq., as designated agent on behalf of the United States and the individual defendants, [email protected]

s/ Ma-Linda Stevens Ma-Linda Stevens Office of the U.S. Attorney

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