United States District Court, D. New Mexico
ORDER GRANTING MOTION TO STAY DISCOVERY AND DENYING
MOTION TO APPOINT COUNSEL
Fashing United States Magistrate Judge.
MATTER comes before the Court on defendants the New Mexico
Corrections Department and former secretary David
Jablonski's (collectively “NMCD”) Unopposed
Motion to Stay Proceedings and Memorandum of Law in Support
Thereof, filed on January 29, 2019. Doc. 5. Pursuant to our
local rules, NMCD contacted Mr. Nunez's counsel to
determine whether the motion was opposed. Doc. 5 at 1, n.1.
On January 30, 2019, the day after NMCD filed its motion to
stay, Mr. Nunez's counsel withdrew from the case. Docs.
7, 8. Due to counsel's withdrawal, the Court ordered NMCD
to determine whether Mr. Nunez opposed the motion to stay.
Doc. 8 at 2. On January 31, 2019, NMCD filed a notice
advising the Court that Mr. Nunez did oppose the motion. Doc.
10. Although Mr. Nunez opposed the motion to stay, he did not
file a response to the motion. Instead, on February 8, 2019,
Mr. Nunez filed a letter asking the Court to appoint counsel.
reviewed NMDC's motion to stay and noting a lack of a
response from Mr. Nunez, the Court finds that the motion is
well taken and will GRANT it. The Court has also reviewed and
considered Mr. Nunez's motion to appoint counsel, finds
that it is not well taken, and will DENY it.
NMCD's Motion to Stay
case arises from Mr. Nunez's claims of violations of his
right under the Fourth, Eighth and Fourteenth Amendments of
the United States Constitution. Doc. 1-2 at 6. Mr. Nunez
brings his claims pursuant to 42 U.S.C. § 1983.
Id. Mr. Nunez alleges that he was unlawfully
detained and incarcerated for at least 60 days because of
errors made by the NMCD. Id. at 9.
filed a motion to dismiss Mr. Nunez's complaint based, in
part, on qualified immunity. Doc 4. NMCD also filed a motion
to stay discovery pending a ruling on the motion to dismiss,
which is the motion addressed in this order. Doc. 5. The
Court will grant the motion to stay not only because Mr.
Nunez's failure to file a response to the motion
constitutes consent to grant it; but also because discovery
should be stayed until the Court decides whether defendants
are entitled to qualified immunity.
Mr. Nunez's Failure to File a Response to the Motion
district's local rules state: “The failure of a
party to file and serve a response in opposition to a motion
within the time prescribed for doing so constitutes consent
to grant the motion.” D.N.M.LR-Civ 7.1(b). NMCD filed
their motion to stay on January 29, 2019. Doc. 5. The Court
ordered NMCD to determine whether Mr. Nunez opposed their
motion to stay and file a notice with the Court indicating
whether Mr. Nunez opposed the motion. If Mr. Nunez did oppose
the motion, he had 14 days from the date the notice was filed
to file a response to the motion to stay. Doc. 8 at 2. NMCD
filed the notice noting Mr. Nunez's opposition to the
motion to stay on February 1, 2019. Mr. Nunez had until
February 15, 2019, to file a response. Mr. Nunez did not file
a response by February 15, 2019, and has never submitted a
response. Although Mr. Nunez is a pro se party, he still is
obligated to “follow the same rules of procedure that
govern other litigants.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Accordingly, Mr. Nunez has consented to the Court granting
NMCD's motion to stay. D.N.M.LR-Civ 7.1(b).
A Stay of Discovery is Warranted
well settled that a qualified immunity defense
“protects the official both from liability as well as
from the ordinary burdens of litigation, including
far-ranging discovery.” Workman v. Jordan, 958
F.2d 332, 335 (10th Cir. 1992) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 817-18 (1982)). The Supreme
Court repeatedly has emphasized the importance of resolving
the issue of qualified immunity early on in the litigation.
Scott v. Harris, 550 U.S. 372, 376 n.2 (2007)
(citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(per curiam)). The Court later clarified that the defense of
qualified immunity does not create immunity from all
discovery, but only from “broad-reaching discovery,
” and it recognized that “limited discovery may
sometimes be necessary before the district court can resolve
a motion for summary judgment based on qualified
immunity.” Crawford-El v. Britton, 523 U.S.
574, 593 n.14 (1998) (quotation omitted). Unlike a motion for
summary judgment, however, a motion to dismiss tests the
legal sufficiency of a complaint and requires no additional
discovery. See Ashcroft v. Iqbal, 556 U.S. 662,
an official is entitled to qualified immunity turns on
whether his conduct violated clearly established statutory or
constitutional rights of which a reasonable official would
have been aware. Harlow, 457 U.S. at 818; see
also Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014)
(reaffirming that officials acting in discretionary
capacities are generally entitled to qualified immunity
unless their conduct violates clearly established law).
Therefore, qualified immunity depends on the objective
reasonableness of the official's conduct.
Harlow, 457 U.S. at 818. Standard practice in this
District is to stay discovery-as to all defendants-when the
defense of qualified immunity has been raised. See
Workman, 958 F.2d at 336; see also Herrera v. Santa
Fe Pub. Schs., No. CIV 11-0422 JB/KBM, 2012 WL 6846393,
at *10 (D.N.M. Dec. 20, 2012) (unpublished). Accordingly, the
motion to stay is warranted in this case because NMCD has
moved to dismiss Mr. Nunez's complaint based on a claim
of qualified immunity.
Mr. Nunez's Motion to Appoint Counsel
of filing a response to the motion to stay, Mr. Nunez filed a
letter with the Court on February 8, 2019 that the Court will
construe as a motion to appoint counsel. Doc. 13. On February
22, 2019, NMCD filed a response to Mr. Nunez's motion.
Doc. 16. The Court will deny Mr. Nunez's request.
district court may, in its broad discretion, appoint counsel
to an indigent party in a civil case, Williams v.
Meese,926 F.2d 994, 996 (10th Cir. 1991), but civil
litigants enjoy no constitutional right to an attorney,
Johnson v. Johnson,466 F.3d 1213, 1217 (10th Cir.
2006) (per curiam). In determining whether to appoint
counsel, the district court should consider the merits of the
litigant's claims, the nature and complexity of the
factual and legal issues, and the litigant's ability to
investigate the facts and to present his claims. Hill v.
SmithKline Beecham Corp.,393 F.3d 1111, 1115 (10th Cir.
2004). The Court has reviewed the complaint and subsequent
filings in light of the foregoing factors. In his motion, Mr.
Nunez explains that he is indigent and disabled. Doc. 13 at
2. He appears, however, to understand the issues ...