# Nunez v. Jones

> District Court, D. Oregon · November 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10391374

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391374

## How later opinions describe it (automated extraction)

- describing a decision to stop an individual “based solely on his Hispanic appearance” as “an egregious constitutional violation”
- holding that appearing “out of place” has “no relevance to establishing reasonable suspicion because nothing suggests such behavior indicates an individual’s illegal status”
- describing a decision to stop an individual “based solely on his Hispanic appearance” as “an egregious constitutional violation”
- holding that officers may not use their authority to arrest individuals as punishment for verbally challenging them absent other causes

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LUZ A. NUNEZ, Case No. 2:18-cv-00375-SU

Plaintiff, OPINION AND ORDER

v.

B. JONES, and JOHN DOES 1-4, in their
individual capacities as agents of the United
States Immigration and Customs Enforcement,

Defendants.

Stephen S. Walters and David Henretty, Oregon Law Center, 522 SW Fifth Ave., Suite 812,
Portland, OR 97204. Jonathan M. Dennis, Oregon Law Center, 35 SE Fifth Ave., Suite 1,
Ontario, OR 97914. Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Dianne Schweiner, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 SW Third Ave., Suite 600,
Portland, OR, 97204. Attorneys for Defendants.

IMMERGUT, District Judge.

On August 12, 2019, Magistrate Judge Patricia Sullivan issued her Findings and
Recommendation (“F&R”) in this case, in which Plaintiff Luz Nunez brings a Bivens claim against
five U.S. Immigration and Customs Enforcement (“ICE”) agents—Defendant B. Jones and four John
Doe defendants.1 ECF 70. Magistrate Judge Sullivan recommended that this Court deny Defendant
Jones’s Motion to Dismiss, deny Defendant Jones’s Motion for Stay of Discovery, grant Plaintiff’s
Motion for Discovery and/or Inspection, and defer ruling on Defendant Jones’s Motion for Summary
Judgment. Id. at 20.
Defendant Jones timely filed objections to the F&R. ECF 73. Plaintiff filed a response to
objections. ECF 74. This Court has reviewed de novo the portions of the F&R to which Defendant
Jones objected. This Court adopts in part Magistrate Judge Sullivan’s Findings and Recommendation

as provided herein. Defendant Jones’s Motion to Dismiss is denied, Defendant Jones’s Motion for
Stay of Discovery is denied, and a ruling on Defendant Jones’s Motion for Summary Judgment is
deferred until the parties are provided an opportunity to gather limited discovery on the issue of
qualified immunity.
STANDARDS
Under the Federal Magistrates Act (“Act”), as amended, the court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s F&R, “the court shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. But the court is not required to review, de novo or
under any other standard, the factual or legal conclusions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc). Nevertheless, the Act “does not preclude further review

1 As Magistrate Judge Sullivan noted, after the parties filed the motions considered in the Findings
and Recommendation, ECF 70, Plaintiff filed a First Amended Complaint that named two of the Doe
Defendants as “Robert Hope” and “Phillip Maple.” See ECF 70 at 2, n.1; ECF 44. The motions
considered in this opinion relate to Plaintiff’s original complaint. ECF 25, 30, 32. Accordingly, this
Court uses the captions from that complaint, which names Defendants Hope and Maple as “Does.”
See ECF 1.
by the district judge, sua sponte” whether de novo or under another standard. Thomas, 474 U.S. at
154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no
timely objection is filed,” the Court review the magistrate judge’s recommendations for “clear error
on the face of the record.”
DISCUSSION
Magistrate Judge Sullivan concluded that Plaintiff pleaded a viable Bivens claim sufficient to
survive Defendant Jones’s motion to dismiss. See ECF 70 at 15–16. Then, in considering the parties’

discovery motions and the motion for summary judgment, the magistrate judge found that the parties
presented conflicting versions of the facts concerning the arrest. Id. at 19–20. Rather than denying
the summary judgment motion due to the disputed material facts, the magistrate judge applied a
procedural approach outlined by the Supreme Court in Crawford-El and Anderson. See ECF 70 at
19–20; Crawford-El v. Britton, 523 U.S. 574, 597–600 (1998); Anderson v. Creighton, 483 U.S.
635, 646 n.6 (1987). The magistrate judge deferred ruling on the summary judgment motion so that
the parties may gather discovery on the issue of qualified immunity. In so doing, the magistrate judge
preserved an opportunity for the court to assess the validity of Plaintiff’s claim before permitting the
case to proceed to trial.
Defendant Jones objects to the following portions of the F&R: (1) the magistrate judge’s
refusal to rule on Defendant Jones’s motion for summary judgment; (2) the conclusion that there was
no probable cause to arrest Plaintiff; (3) the conclusion that Plaintiff’s arrest was retaliatory based on
her protected speech; (4) the conclusion that the law was clearly established under the totality of the
circumstances; and (5) certain factual findings. ECF 73 at 2.
A. Summary Judgment
Defendant Jones first contends that Magistrate Judge Sullivan erred by refusing to rule on the

motion for summary judgment. ECF 73 at 2. The magistrate judge concluded that this Court should
defer deciding the motion for summary judgment so that Plaintiff may gather limited discovery on
the issue of qualified immunity. ECF 70 at 19. This Court adopts the F&R’s recommendation to
defer ruling on summary judgment because the parties present differing versions of the arrest at
issue. To enable the Court to give a full and fair determination of whether qualified immunity
justifies dismissing the claim pursuant to Defendant Jones’s motion for summary judgment, the
parties may gather limited discovery on the issue of qualified immunity.
One of the purposes of qualified immunity is to protect government officials from “broad-
ranging discovery” that can be “disruptive of effective government.” See Harlow v. Fitzgerald, 457

U.S. 800, 817 (1982). Therefore, the Supreme Court has “stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227
(1991) (per curiam). A defendant pleading qualified immunity is entitled to a dismissal before
discovery unless the plaintiff’s allegations state a claim that violates clearly established law. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). “Even if the plaintiff's complaint adequately alleges
the commission of acts that violated clearly established law, the defendant is entitled to summary
judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the
defendant in fact committed those acts.” Id. The Supreme Court has explained that qualified
immunity “is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if
a case is erroneously permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200–01 (2001)
(quotation marks omitted). The Court has also emphasized that district judges have broad discretion
to manage discovery to protect the interests of the qualified immunity defense. See Anderson, 483

U.S. at 646 n.6; Crawford-El, 523 U.S. at 599–01; Harlow, 457 U.S. at 818.
A motion for summary judgment will be denied if there exists a genuine issue of material fact
and the moving party is not entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The
court must view the evidence in the light most favorable to the non-movant and draw all reasonable
inferences in the non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252,
1257 (9th Cir. 2001).
As noted above, the F&R relied on the Supreme Court’s holdings in Crawford-El and
Anderson in recommending that this Court defer ruling on the motion for summary judgment.
Defendant Jones challenges the applicability of Crawford-El to the present case. ECF 73 at 4–7.
Defendant Jones argues that the Crawford-El procedures do not apply to claims with an objective

standard, as in this case, but instead only to claims that require proof of motive. Id. at 5. However,
the Supreme Court described the same approach in Anderson, involving a Fourth Amendment claim
that did not require proof of motive. 483 U.S. at 646 n.6 (1987). In Anderson, the Supreme Court
explained that limited discovery is sometimes required before deciding a motion for summary
judgment based on a theory of qualified immunity. Id. The Court specified that discovery may be
necessary if the actions that the defendant claims he took are different than the actions that the
plaintiff alleges the defendant took. Id.
This Court finds that deferring ruling on the summary judgment motion is appropriate given
the differing versions of the arrest presented by the parties. Compare Decl. of Brandon Jones, ECF
26, with Decl. of Luz Nunez, ECF 34. Accordingly, this Court adopts the Magistrate Judge’s
recommendation to defer ruling on the summary judgment motion.
B. Probable Cause
Defendant Jones next objects to the F&R’s conclusion that he lacked probable cause to arrest
Plaintiff. ECF 73 at 2. Defendant criticizes that the F&R based this conclusion “solely on the bare
allegations in Plaintiff’s Complaint.” Id. at 7. That argument is misplaced. The F&R properly
considered the facts as pleaded because the analysis was conducted for the purpose of Defendant
Jones’s Rule 12(b)(6) motion to dismiss. See ECF 70 at 3 (explaining that the court accepted the facts

as pleaded in reviewing a motion to dismiss).
When evaluating a motion to dismiss for failure to state a claim, the court must accept as true
all well-pleaded material facts alleged in the complaint and construe them in the light most favorable
to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012);
Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). The court must draw all
reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon
Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). Generally, a court may not consider materials

outside of the pleadings when deciding a Rule 12(b)(6) motion to dismiss. See Marder v. Lopez, 450
F.3d 445, 448 (9th Cir. 2006). If a court considers extrinsic evidence outside the pleadings for a
12(b)(6) motion, the motion to dismiss is treated as a motion for summary judgment. Fed. R. Civ. P.
12(d); Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
To survive a motion to dismiss for a failure to state a claim, a complaint must contain
sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and continued litigation.”
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see also Fed. R. Civ. P. 12(b)(6). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The

plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d
984, 988 (9th Cir. 2017) (quotation marks omitted).
A defendant presenting a qualified immunity defense on a Rule 12(b)(6) motion rather than a
summary judgment motion faces the more stringent standard applicable to a motion to dismiss.
McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). Dismissal under Rule 12(b)(6) is not
appropriate unless qualified immunity can be established based solely on the facts alleged in the
complaint. See Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). A plaintiff is “entitled to
all reasonable inferences from the facts alleged, not only those that support his claim, but also those
that defeat the immunity defense.” See McKenna, 386 F.3d at 436.2
Plaintiff alleges that her arrest and detention by Defendants were unlawful seizures in
violation of the Fourth Amendment. ECF 1 at 7. In the context of Fourth Amendment seizures,
qualified immunity attaches to protect a government officer “[e]ven absent probable cause” if a

reasonable officer “could have believed that his or her conduct was lawful, in light of clearly
established law . . . .” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir. 1991). Thus, to
survive this motion to dismiss, Plaintiff must have alleged facts that demonstrate that a reasonable
officer could not have believed the conduct was lawful under clearly established law.
The F&R identified two plausible inferences from the allegations in Plaintiff’s complaint: (1)
that Defendant Jones arrested Plaintiff on the suspicion that she was an illegal alien, and (2) that
Jones arrested Plaintiff, at least in part, for being uncooperative. ECF 70 at 11. The F&R properly
concluded that the allegations were sufficient to state a Bivens claim for unlawful arrest under clearly
established law to defeat qualified immunity at this stage of the proceeding.3 This Court adopts
Magistrate Judge Sullivan’s recommendation on this issue but offers the following explanation for
this decision.4

2 The Ninth Circuit has noted that when ruling on a motion to dismiss, the “confluence of two well-
intentioned doctrines, notice pleading and qualified immunity, give rise to [an] exercise in legal
decisionmaking based on facts both hypothetical and vague.” Kwai Fun Wong v. United States, 373
F.3d 952, 956 (9th Cir. 2004). “The unintended consequence of this confluence of procedural
doctrines is that the courts may be called upon to decide far-reaching constitutional questions on a
nonexistent factual record . . . .” Id. at 957.
3 This Court makes no ruling on the merits of Plaintiff’s claim, nor whether Defendant Jones will be
entitled to qualified immunity at later stages in the proceedings.
4 The F&R noted that the passengers in Plaintiff’s vehicle were identified as “fugitives” and illegal
aliens in a declaration submitted by Defendant Jones. ECF 70 at 15. But Plaintiff has not alleged that
her passengers were suspected illegal aliens or suspected fugitives, nor has she alleged that her arrest
The following description of events is taken from the well-pleaded factual allegations in
Plaintiff’s complaint. ECF 1. Plaintiff, a Hispanic citizen of the United States, was driving her car
with two Hispanic passengers when Defendant Jones and the other officers stopped her vehicle. ECF
1 at 2, ¶ 1; Id. at 4, ¶ 14. Plaintiff did not specify whether her passengers were United States citizens
or otherwise describe them. See id. at 4 ¶ 14. After she was pulled over, she complied with the
officers’ orders to put her hands on top of her vehicle. Id. at 5, ¶ 16. She spoke to the officers in
English and provided them with her identification—an Oregon state driver’s license. Id. at ¶¶ 20, 30.
When the officers asked where she was from, she replied that she was from “here.” Id. at 4, ¶ 19. She

was ordered to stand next to her vehicle and was told that she was not free to leave. Id. at ¶ 17.
Defendant Jones told another officer that Plaintiff had been “mouthy” and falsely claimed that she
attempted to assault an officer. Id. at 5, ¶ 21. The officers then arrested her without providing a
reason for her arrest. Id. at ¶ 22. Defendant Jones drove her to the U.S. Department of Homeland
Security office in Boise, Idaho, where she was placed in a holding cell. Id. at ¶¶ 23, 24. While she
was in custody, two officers questioned her about her place of birth. Id. at 6, ¶ 27. Those officers told
her that she was arrested because they were unsure whether she was a United States citizen and
because she had been “uncooperative.” Id.
1. Illegal Alien5
First, the allegations in the complaint support an inference that Plaintiff was arrested on the
suspicion that she was an illegal alien. Under the facts as pleaded by Plaintiff, a reasonable officer

resulted from her proximity to those passengers. This Court is limited to the well-pleaded facts from
Plaintiff’s complaint and reasonable inferences drawn from those allegations for the determination of
this Rule 12(b)(6) motion. See Marder, 450 F.3d at 448. Therefore, this Court does not consider facts
from Defendant Jones’s declaration in analyzing the motion to dismiss.
5 Consistent with the F&R, this “Court is mindful of the disagreements regarding [the] appropriate
term for those individuals in the United States without documentation, or ‘illegally,’ but has decided
to use the term ‘illegal alien’ in line with the governing caselaw.” ECF 70 at 11 n.5.
could not have believed that under clearly established law, probable cause supported her arrest as a
suspected illegal alien. Plaintiff has alleged a viable Bivens claim for an unlawful seizure under the
Fourth Amendment.
As discussed by Magistrate Judge Sullivan, the law is clearly established that Plaintiff’s
Hispanic appearance, taken alone, does not provide probable cause that she is an illegal alien. ECF
70 at 11. “[I]mmigration agents may not effect an investigative seizure of a suspected illegal alien
solely because of his Hispanic appearance.” Orhorhaghe v. I.N.S., 38 F.3d 488, 503 (9th Cir. 1994)

(citing United States v. Brignoni-Ponce, 422 U.S. 873 (1975)); see also Gonzalez-Rivera v. I.N.S.,
22 F.3d 1441, 1450–52 (9th Cir. 1994) (describing a decision to stop an individual “based solely on
his Hispanic appearance” as “an egregious constitutional violation”). To the contrary, Plaintiff
provided the officers with her Oregon driver’s license, communicated in English, and told the
officers that she was from “here.” ECF 1 at 4, ¶ 19; id. at 5 ¶ 20; id. at 6 ¶ 30. These facts, while not
conclusive evidence of Plaintiff’s lawful status in the United States, weigh against suspecting that
Plaintiff was an illegal alien.
Plaintiff was driving two Hispanic passengers when her vehicle was stopped. Id. at 4, ¶¶ 14–
15. The complaint provides no information about whether Plaintiff’s passengers are United States
citizens or whether they were arrested, as illegal aliens or otherwise. See ECF 1. However, simply
driving Hispanic passengers, even if those passengers are found to be illegal aliens, is insufficient to
provide probable cause to arrest a driver. Mere proximity to, or association with, Hispanic
individuals, even where there may be illegal aliens present, is of “such . . . low probative value” that
it cannot provide probable cause for suspecting that an individual is an illegal alien. United States v.
Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000); see also United States v. Manzo-

Jurado, 457 F.3d 928, 937 (9th Cir. 2006) (holding that appearing “out of place” has “no relevance
to establishing reasonable suspicion because nothing suggests such behavior indicates an individual’s
illegal status”). To have probable cause to arrest someone on suspicion of being an illegal alien, due
to proximity or association with Hispanic individuals, “particularized information” specific to that
person is required. Manzo-Jurado, 457 F.3d at 937–38.
Even if there was an allegation in the complaint that Plaintiff’s passengers were
undocumented aliens, that allegation would be insufficient to establish probable cause. In United
States v. De La Cruz, the court noted that being illegally in the United States is a “status crime” that
would not necessarily suggest that the individual’s driver was also involved in criminal activity. 703
F.3d 1193, 1198 (10th Cir. 2013). Furthermore, the court concluded that the driver could not be

suspected of unlawfully transporting an illegal alien under federal law merely because he came “into
daily contact with undocumented aliens” or “intermingle[d] with illegal aliens socially and
otherwise.” Id. at 1199 (quoting United States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir.
1999) (en banc)). That crime required that “such transportation . . . be in furtherance of the alien’s
violation of the law.” Id. at 1198 (emphasis added). The court “reject[ed] the general premise that
once someone has been identified by authorities as unlawfully in the United States, anyone providing
him with transportation for his daily activities is also reasonably suspected of criminal activity.” Id.
at 1199.
Accordingly, even assuming that Plaintiff’s passengers were arrested as illegal aliens, which
is not clear from the complaint, the officers lacked probable cause to arrest Plaintiff without
additional information particular to Plaintiff. When all reasonable inferences are drawn from the
allegations, this Court finds that Plaintiff sufficiently pleaded facts to support a claim that she was
arrested on suspicion that she was an illegal alien without probable cause.
2. Retaliatory Arrest
Second, the allegations in the complaint support an inference that Plaintiff’s arrest was
retaliatory based on protected speech activity. When Plaintiff’s version of the arrest is taken as true,
she has stated a viable Bivens claim for a retaliatory arrest under clearly established law.
Defendant Jones contends that the F&R erroneously concluded that Plaintiff’s arrest was
retaliatory. ECF 73 at 12–13. He argues that this conclusion was unsupported by the record and
clearly established law. Id. Defendant Jones points out that the F&R relied on Ford v. City of
Yakima, 706 F.3d 1188 (9th Cir. 2013), which was overruled by Nieves v. Bartlett, 139 S. Ct.

1715 (2019). The F&R cited Ford for the proposition that an individual has a right to be free from
retaliatory arrest, even if probable cause existed for that action. ECF 70 at 16 (citing 706 F.3d at
1195–96). This Court declines to adopt the portions of the F&R regarding retaliatory arrest, Section
C.2., ECF 70 at 16–17, and supplements the F&R as follows.
The First Amendment prohibits governmental officials from taking retaliatory actions against
individuals for engaging in protected speech. Nieves, 139 S.Ct. at 1722 (citing Hartman v. Moore,
547 U.S. 250, 256 (2006)). A retaliatory arrest without probable cause violates an individual’s
constitutional rights. See Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990)
(holding that officers may not use their authority to arrest individuals as punishment for verbally
challenging them absent other causes). To succeed on a claim for retaliatory arrest, a plaintiff must
prove there was no probable cause for the arrest. See Nieves, 139 S.Ct. at 1725–26. The Ninth

Circuit has held that a raised voice or temporary refusal to comply with an officer’s commands will
not, without more, constitute probable cause. See Sialoi v. City of San Diego, 823 F.3d 1223,
1233–34 (9th Cir. 2016).
Plaintiff alleged that she complied with the officers’ orders to put her hands on top of her
vehicle after she was pulled over. ECF 1 at 5, ¶ 16. She also contends that she answered when the
officer asked where she was from. Id. at 4, ¶ 19. Plaintiff then claims that Defendant Jones told
another officer that Plaintiff had been “mouthy” and falsely stated that she attempted to assault an
officer. Id. at 5, ¶ 21. Plaintiff also alleges that she was not initially provided a reason for her arrest,
then later told that she was arrested in part because she had been “uncooperative.” Id. at 5–6, ¶¶ 22,
27. Finally, Plaintiff contends that she was never charged with a crime. Id. at 6, ¶ 35. When all
reasonable inferences are drawn from the allegations, this Court finds that Plaintiff sufficiently
pleaded facts to support a claim that she was arrested for retaliatory reasons without probable cause.
C. Clearly Established Law

Defendant Jones also objects to the F&R’s conclusion that the alleged conduct violated
clearly established law. Defendant Jones argues that “clearly established law should be defined at the
Supreme Court level” and the magistrate judge erred by relying on district court precedent. ECF 73 at
9–10. Defendant Jones also suggests that recent Supreme Court opinions have cast doubt on whether
circuit court opinions may constitute clearly established law. Id. at 10 (citing City & Cty. of San
Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1776 (2015); City of Escondido, Cal. v. Emmons,
139 S. Ct. 500, 503 (2019)).
First, the magistrate judge did not rely on any district court opinions in her analysis of this
issue. See ECF 70 at 10–17. Second, the Supreme Court has not yet decided whether circuit court
decisions constitute clearly established law. See City & Cty. of San Francisco, 135 S.Ct. at 1776
(assuming without deciding that circuit court precedent could constitute clearly established law); City
of Escondido, 139 S.Ct. at 503 (same). Accordingly, district courts are not prohibited from relying
on circuit court precedent when analyzing what constitutes clearly established law in the context of

qualified immunity. See Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1060
(9th Cir. 2003). The magistrate judge did not err by relying on precedent from circuit courts.
D. Factual Findings
Defendant Jones also objects to certain factual findings from the F&R. The F&R accepted the
Plaintiff’s well-pleaded allegations as true for the purpose of reviewing Defendant Jones’s motion to
dismiss. ECF 70 at 10. The F&R analyzed “only whether the allegations in the Complaint state a
Bivens claim under Fed. R. Civ. P. 12(b)(6) standards” and did not “look to whether plaintiff has
presented sufficient evidence of a constitutional violation under a summary judgment standard.” Id.
at 7. Accordingly, the F&R did not make factual findings regarding the merits of Plaintiff’s claims.
See id. at 3 (stating that the court reviews the facts as pleaded in the complaint and bases its decision

on those allegations and not on factual materials submitted regarding the motion for summary
judgment). This Court finds no reason to modify the F&R on this basis.
CONCLUSION
This Court has reviewed de novo the portions of Magistrate Judge Sullivan’s Findings and
Recommendation to which Defendant Jones objected. Upon review, this Court ADOPTS IN PART
the Findings & Recommendation as supplemented herein. Accordingly, this Court DENIES
Defendant Jones’s Motion to Dismiss, DENIES Defendant Jones’s Motion for Stay of Discovery,
DEFERS ruling on Defendant Jones’s Motion for Summary Judgment, and thus AFFIRMS
Magistrate Judge Sullivan’s order to grant limited discovery on the issue of qualified immunity.
IT IS SO ORDERED.
DATED this 20th day of November, 2019.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391374. Public record. Not legal advice.