“The Supreme Court has now made clear that a plaintiff asserting constitutional claims against an officer claiming [qualified immunity] must survive the motion to dismiss without any discovery.”
How later courts described this case
- “The Supreme Court has now made clear that a plaintiff asserting constitutional claims against an officer claiming [qualified immunity] must survive the motion to dismiss without any discovery.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JULIE NEVAREZ, ET AL CIVIL ACTION
VERSUS NO. 21-1855
DANA COLEMAN, ET AL SECTION: “P” (5)
ORDER AND REASONS
Before the Court is a Motion to Stay All Discovery Pending Resolution of Defendants’
Qualified Immunity Defense by the Fifth Circuit filed on behalf of Defendants Anthony Dorris
and Justin Leonard. 1 Plaintiffs oppose the motion.2 For the following reasons, the motion is
GRANTED.
BACKGROUND
A. Factual Background
This case arises out of the tragic fatal shooting of Miguel Nevarez on the lawn of his own
home by officers from the Houma Police Department (“HPD”) and the Terrebonne Parish Sheriff’s
Office (“TPSO”). On October 13, 2020, at 9:00 p.m., Defendant Walter Tenney, an HPD officer,
was investigating reports of gunshots in Mr. Nevarez’s neighborhood.3 Tenney allegedly
approached Mr. Nevarez, who was sitting on the driver’s side of his vehicle, parked in the driveway
of his residence.4 Tenney reportedly asked Mr. Nevarez to speak with him, and when Nevarez
refused, Tenney “drew his service weapon and called for backup.”5 Plaintiffs allege that Tenney,
“without any basis in fact,” reported that Mr. Nevarez possibly had a gun in his car.6 Tenney and
1 R. Doc. 74.
2 R. Doc. 76.
3 R. Doc. 47 ¶¶ 28–29.
4 Id. ¶ 29.
5 Id.
6 Id. ¶ 30.
other officers further reported that Mr. Nevarez had “barricaded” himself in his vehicle.7 Plaintiffs
represent that, at this point, the officers “continued to escalate the situation” by blocking off the
surrounding streets, and calling for additional backup, which resulted in nearly fifty officers from
HPD and TPSO arriving at the scene.8
Plaintiffs allege that when Julie Nevarez, Mr. Nevarez’s wife, tried to access Mr. Nevarez
and her home, she was denied access to her street.9 Ms. Nevarez alleges that she was approached
by Lt. Travis Theriot, an officer she describes as a “purported negotiator,” to whom she identified
herself as Mr. Nevarez’s wife.10 She contends that during her conversation with Theriot, Mr.
Nevarez called her cell phone, and that Theriot seized her phone, refusing to let her talk to Mr.
Nevarez.11
At 10:26 p.m. that night, Mr. Nevarez allegedly left his vehicle and ran toward the back of
his house, and toward, unbeknownst to him, HPD officers Sidney Theriot and Tenney.12 In an
effort to stop Mr. Nevarez, Officer Theriot allegedly shot at Mr. Nevarez with his 40 mm “impact
munition,” and Officer Tenney attempted to tase him.13 Mr. Nevarez allegedly stumbled but
regained his footing and began to run toward the front corner of his house, at which point,
according to defendants, Mr. Nevarez “raised a gun towards [HPD Officer] Bolgiano.”14 Plaintiffs
dispute that Mr. Nevarez raised a gun towards Bolgiano.15 Allegedly in response, Bolgiano fired
at Mr. Nevarez as he emerged from the west side of the yard.16 Several other defendants also
7 Id. ¶ 33.
8 Id. ¶¶ 34–35.
9 Id. ¶ 36.
10 Id. ¶¶ 35–36.
11 Id. ¶ 36.
12 Id. ¶ 41.
13 Id. ¶¶ 44–45.
14 Id. ¶ 48.
15 See id. (“Upon information and belief, discovery will contradict Bolgiano’s allegation.”)
16 Id. ¶ 49.
reported firing on Mr. Nevarez,17 and Plaintiffs assert that Mr. Nevarez was ultimately shot at
approximately 20 times.18
The Houma Police Administration allegedly asked the Louisiana State Police (“LSP”) to
investigate the circumstances surrounding Mr. Nevarez’s death.19 As part of this investigation, on
October 14, 2020, hours after Mr. Nevarez’s death, LSP State Trooper Justin Leonard secured a
search warrant for the Nevarez home and the vehicle in which Mr. Nevarez was seated the
preceding night, which Plaintiffs allege was registered to Ms. Nevarez.20 Also as part of the
investigation, on October 19, 2020, five days after Mr. Nevarez’s death, LSP State Trooper
Anthony Dorris secured a search warrant for Ms. Nevarez’s cell phone that was seized the night
of her husband’s death.21 Plaintiffs allege LSP State Troopers Leonard and Dorris knowingly and
intentionally submitted affidavits containing false or insufficient factual statements and material
omissions to procure the search warrants.22
Prior to filing this lawsuit, Plaintiffs allegedly submitted public records requests to the LSP
and the Terrebonne Parish Consolidated Government (“TPCG”), which governs the HPD, seeking
information about the circumstances of Mr. Nevarez’s death.23 Plaintiffs contend both entities’
records custodians failed to timely comply with the requests and have denied Plaintiffs the right to
inspect the requested records.24
17 Id. ¶¶ 49–50, 52–53.
18 Id. ¶ 51.
19 Id. ¶ 61.
20 Id. ¶ 62.
21 Id. ¶ 69.
22 Id. ¶ 76.
23 Id. ¶¶ 83, 90
24 Id. ¶¶ 89–90, 94.
B. Relevant Procedural Background
On October 12, 2021, Plaintiffs filed a complaint in this Court that included claims against
three groups of defendants for their respective, alleged roles related to the death of Mr. Nevarez:
(1) the HPD and TPSO officers who allegedly shot at Mr. Nevarez, as well as their on-scene
supervisors; (2) the LSP State Troopers, Justin Leonard and Anthony Dorris, who investigated Mr.
Nevarez’s death; and (3) the TPCG and LSP records custodians.25
The LSP State Troopers (“Movants”), Leonard and Dorris, are sued in their individual
capacities, pursuant to 42 U.S.C. § 1983, for allegedly violating Ms. Nevarez’s Fourth Amendment
right by procuring the search warrants used to search Ms. Nevarez’s home, car, and cell phone
based on knowingly false statements and intentional omissions of material facts.26 To date,
Movants have filed three motions to dismiss invoking the defense of qualified immunity.27 After
considering the first two, the Court found Movants were entitled to qualified immunity but
provided Plaintiffs an opportunity to amend their complaint.28 Movants filed the third motion after
Plaintiffs filed their Second Amended Complaint.29 Based on the new allegations and additional
briefing, the Court found Movants were not entitled to qualified immunity and denied their motion
to dismiss.30 Movants appealed the Court’s ruling, and it is currently pending before the United
States Court of Appeals for the Fifth Circuit. The remaining Defendants have not invoked qualified
immunity.
On March 27, 2023, Plaintiffs filed a motion to set a telephone scheduling conference to
obtain a trial date and associated pretrial deadlines.31 Therein, Plaintiffs indicated Defendants
25 R. Doc. 2.
26 R. Doc. 47 ¶¶ 24–25, 103–08.
27 See R. Docs. 12, 35, 49.
28 R. Doc. 46.
29 R. Doc. 49.
30 R. Doc. 60.
31 R. Doc. 67.
opposed the motion and would be moving to stay the proceedings until the Fifth Circuit resolves
the issue of whether the LSP Defendants are entitled to qualified immunity. This case was then
transferred to the undersigned on June 8, 2023. And on June 22, 2023, the Court denied Plaintiffs’
motion, set a status conference, and urged any party with a good faith belief that this matter should
be stayed, or who believed the Court should not set this matter for a Rule 16 Scheduling
Conference, to file an appropriate motion by July 19, 2023.32 Movants then filed the instant
motion.33
Movants seek a stay of all discovery in this matter on the grounds that they have invoked
the defense of qualified immunity and therefore should not be subjected to discovery burdens until
the issue of qualified immunity is resolved by the Fifth Circuit. Plaintiffs do not contest the stay
of discovery as to their claims against Movants but argue there is no justification to stay discovery
as to their claims against the remaining Defendants who have not invoked qualified immunity.
LAW AND ANALYSIS
A. Legal Standard
“Trial courts possess broad discretion to supervise discovery.”34 Federal Rule of Civil
Procedure 26(c) allows the court to issue an order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense” upon a showing of good cause.35 Rule
26(c)’s “good cause” requirement indicates that the party seeking a protective order has the burden
“to show the necessity of its issuance, which contemplates a particular and specific demonstration
of fact as distinguished from stereotyped and conclusory statements.”36
32 R. Doc. 73.
33 R. Doc. 74.
34 Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 436 n.114 (5th Cir. 1990) (citation omitted).
35 FED. R. CIV. P. 26(c)(1).
36 In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garret, 571 F.2d 302, 3026 (5th
Cir. 1990)) (citation omitted).
Qualified immunity shields government officials from individual liability for performing
discretionary functions unless their conduct violates clearly established statutory or constitutional
rights of which a reasonable person would have known.37 “The qualified immunity defense affords
government officials not just immunity from liability, but immunity from suit.”38
The Fifth Circuit has clarified that all discovery involving a defendant raising the defense
of qualified immunity must be stayed until resolution of the defense of qualified immunity.39 In
Carswell, the plaintiff filed suit against numerous defendants under 42 U.S.C. § 1983 and Monell
v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).40 The Fifth Circuit
concluded the district court abused its discretion by deferring its ruling on the individual
defendants’ motions to dismiss on qualified immunity grounds and subjecting the defendants to
discovery on the plaintiff's Monell claims, which created an undue burden in light of increased
litigation costs and complications caused by bifurcated discovery.41 The Fifth Circuit expressly
held that the required stay of discovery is not limited to claims to which the defense of qualified
immunity is raised.42 In so ruling, the Fifth Circuit highlighted the Supreme Court's concerns about
the burdens of litigation imposed on public officials.43 It also noted that these same burdens would
be present if the Court allowed discovery to proceed against defendants in different capacities or
against co-defendants that make no claim for qualified immunity:
It is no answer to these concerns to say that discovery for petitioners can be deferred
while pretrial proceedings continue for other defendants. It is quite likely that, when
discovery as to the other parties proceeds, it would prove necessary for petitioners
and their counsel to participate in the process to ensure the case does not develop
37 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
38 Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996) (citing Mitchell v. Forsyth, 472 U.S. 511, 525–26 (1985)).
39 See Carswell v. Camp, 54 F.4th 307, 311 (5th Cir. 2022) (“The Supreme Court has now made clear that a plaintiff
asserting constitutional claims against an officer claiming [qualified immunity] must survive the motion to dismiss
without any discovery.”).
40 Id. at 309.
41 Id. at 310–14.
42 Id. at 313.
43 Id.
in a misleading or slanted way that causes prejudice to their position. Even if
petitioners are not yet themselves subject to discovery orders, then, they would not
be free from the burdens of discovery.44
In other words, “even ‘minimally intrusive discovery’” involving public official defendants is
prohibited until resolution of their qualified immunity defense.45
B. Analysis
Upon review of the record and the applicable law, the Court finds good cause to stay all
discovery in this action until the Fifth Circuit’s resolution of the pending appeal regarding
Movants’ qualified immunity defenses. All parties agree discovery against Movants is
impermissible while their qualified immunity defenses remain pending. And the Court finds it very
unlikely that discovery could proceed in this particular action against the remaining Defendants
without potentially prejudicing and unduly burdening the Movants in the instant Motion. Indeed,
considering the factual allegations in the Second Amended Complaint, allowing discovery to
proceed against the remaining Defendants would almost certainly require Movants and their
counsel “to participate in the process to ensure the case does not develop in a misleading or slanted
way that causes prejudice to their position.”46 As such, Movants “would not be free from the
burdens of discovery.”47 Accordingly, even in a situation in which discovery against the remaining
Defendants is not completely precluded under Carswell, the Court finds good cause in this
particular case pursuant to Rule 26(c) to exercise its discretion and stay all discovery in this action.
44 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 685–86 (2009)).
45 Id. (quoting Iqbal, 556 U.S. at 686).
46 See Iqbal, 556 U.S. at 685.
47 Id. at 686.
CONCLUSION
IT IS ORDERED that Defendants Anthony Dorris and Justin Leonard’s Motion to Stay
All Discovery Pending Resolution of Defendants’ Qualified Immunity Defense by the Fifth Circuit
(R. Doc. 74) is GRANTED, and all discovery is STAYED until further order of the Court.
New Orleans, Louisiana, this 8th day of August, 2023.
wath JAMES bi LION
UNITED STATES DISTRICT JUDGE