United States District Court, D. New Mexico
KARRI DALTON as the Personal Representative of the Estate of NIKKI BASCOM, deceased, and Next Friend to M.B., a minor child, and A.C., a minor child, Plaintiff,
TOWN OF SILVER CITY, ex rel. SILVER CITY POLICE DEPARTMENT, et al., Defendants.
ORDER GRANTING MOTION TO STAY
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE
matter is before the Court upon Grant County ex rel.
Grant County Sheriff's Department, Deputy Jacob Villegas,
Sergeant Frank Gomez, and Deputy Adam Arellano's
(“County Defendants'”) Motion to Stay
Proceedings Pending Outcome of County Defendants' Motion
for Summary Judgment (“Motion”), filed on April
16, 2018. ECF No. 30. Plaintiffs responded on April 30, 2018.
ECF No. 35. The County Defendants filed their Reply on May 1,
2018. ECF No. 36. Having reviewed the Motion and accompanying
briefing, and being otherwise fully advised, the Court will
GRANT the Motion.
filed their First Amended Complaint in the 6th Judicial
District Court of the State of New Mexico on November 15,
2017. ECF No. 1, Ex. 2. Defendants removed Plaintiffs'
First Amended Complaint to federal court on the same day. ECF
No. 1. Plaintiffs allege that Defendants protected Silver
City Police Captain Mark Contreras, “allowing him to
stalk, threaten, and abuse Nikki [Bascom] with impunity and
depriving her of her constitutional rights[, ]” by
facilitating “Contreras's unlawful access to
Nikki's home and treat[ing] her reports differently than
they would any similar complaints by citizens fortunate
enough not to be in a relationship with a police
officer.” ECF No. 1, Ex. 2 at 2.
County Defendants filed their Motion for Summary Judgment
based on qualified immunity on April 13, 2018. ECF No. 29. As
is often done in civil rights cases, the County Defendants
separately moved to stay all proceedings in this case until
the motion to dismiss has been decided. See County
Defs.' Mot. to Stay, ECF No. 30.
STATUS OF THE LAW
immunity balances two important interests - the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). The Supreme Court has repeatedly
highlighted the broad protection that this defense provides
and has stressed that it protects officials not only from
having to stand trial, but from having to bear the burdens
attendant to litigation, including pretrial discovery.
See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009);
see also Saucier v. Katz, 533 U.S. 194, 200 (2001).
Because qualified immunity protects against the burdens of
discovery as well as trial, the Supreme Court has also
emphasized that trial courts should resolve the issue before
discovery if at all possible. See Siegert v. Gilley,
500 U.S. 226, 231-33 (1991); Harlow v. Fitzgerald,
457 U.S. 800, 818-19 (1982) (“Until this threshold
immunity question is resolved, discovery should not be
allowed.”); accord Jones v. City and Cnty. of
Denver, 854 F.2d 1206, 1211 (10th Cir. 1988).
consequence, the Tenth Circuit holds that when defendants
file a dispositive motion based on qualified immunity, they
are ordinarily entitled to a stay of discovery. Jiron v.
City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004);
Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.
1992). Moreover, once a single defendant raises the issue of
qualified immunity in a dispositive motion, discovery for all
defendants should generally be stayed. See Iqbal,
556 U.S. at 685-86.
Court finds that a stay of proceedings as to all defendants
is appropriate. The County Defendants have raised a qualified
immunity defense. The Court is unpersuaded that this case
should be excluded from the general rule that, when a
defendant files a motion asserting the defense of qualified
immunity, he is entitled to a stay of discovery.
argue that the protection from discovery that arises from the
stay “is designed to benefit the public official, not
the municipality that employs the public official.”
Pls.' Resp. 1, ECF No. 35. Consequently, although
Plaintiffs do not oppose a stay of discovery as it relates to
the individual defendants, Plaintiffs assert that
“[t]here is no authority for the proposition that Grant
County receives the benefits of the stay of discovery[,
]” and that Plaintiffs have “the right to conduct
discovery to rebut Grant County's claim to summary
judgment.” Id. at 2. Plaintiffs request
permission to conduct discovery with respect to Grant County
“while the motion for qualified immunity is
pending” because their planned deposition of the Grant
County Sheriff will further inform their contention that
“Grant County had a policy or a ‘custom and
practice' of allowing trespassers to remain in a home
over a homeowner's objection, contrary to New Mexico
law.” Id. at 2-5.
County Defendants counter by arguing that the Tenth Circuit
has concluded that “when qualified immunity is raised
as a defense, there is a narrow right to discovery limited to
the issue of qualified immunity. . . . any such discovery
must be tailored specifically to the immunity question. The
plaintiff is required to demonstrate how discovery will raise
a genuine fact issue as to [the defendants'] qualified
immunity claim.” Defs.' Reply 3-4, ECF No. 36
(quoting Cole v. Ruidoso Mun. Schools, 43 F.3d 1373,
1385-87 (10th Cir. 1994) (alteration in original) (citations
and quotation marks omitted)). The County Defendants also
highlight case law from this district recognizing that
“after Iqbal, the law is clear that discovery
should be stayed upon assertion of qualified immunity, even
for those defendants not asserting the defense.”
Defs.' Reply 5 (quoting Tenorio v. Pitzer, No.
CIV 12-1295 JCH/KBM, 2013 WL 12178001 at *3 (D.N.M. July 27,
Plaintiffs did not file a motion seeking discovery under Rule
56(d). Rule 56(d) permits a party to identify by affidavit or
declaration “facts essential to justify its
opposition” to a summary judgment motion which the
party cannot yet present. Fed.R.Civ.P. 56(d). If a party
properly does so, the Court may defer considering the motion,
deny it, allow additional time for the
“essential” discovery to occur, or issue any
other appropriate order. Id. In the context of
discovery where a qualified immunity defense has been raised,
use of the Rule 56(d) mechanism preserves the protection of
qualified immunity by preventing “broad-reaching”
discovery, but permitting limited discovery which may be
necessary when the doctrine is asserted in a motion for
summary judgment on contested factual assertions. See
Crawford-El v. Britton, 523 U.S. 574, 600 n.20 (1998)
(“The judge does, however, have discretion to postpone
ruling on a defendant's summary judgment motion if the
plaintiff needs additional discovery to explore ‘facts
essential to justify the party's opposition.'”)
(quoting Fed.R.Civ.P. 56(d)).
case, in addition to failing to file a motion seeking
discovery under Rule 56(d), Plaintiffs do not explain why
deposing the Grant County Sheriff would “raise a
genuine fact issue as to [the defendants'] qualified
immunity claim.” See Cole, 43 F.3d at 1387
(alteration in original). Especially because qualified
immunity is not available to entity defendants like Grant
County, see Owen v. City of Independence, Mo., 445
U.S. 622, 638 (1980), it does not appear to the Court that
Plaintiffs' deposition of the Grant County Sheriff
regarding the County's customs and practices would raise
a genuine fact issue as to the individual County
Defendants' qualified immunity claim. Plaintiffs'