a discovery order that denies the defendant “the benefits of the qualified immunity defense” vests the Court of Appeals “with the requisite jurisdiction to review the discovery order” (footnote omitted)
How later courts described this case
- a discovery order that denies the defendant “the benefits of the qualified immunity defense” vests the Court of Appeals “with the requisite jurisdiction to review the discovery order” (footnote omitted)
- “Knowing or reckless false statements in a warrant affidavit are not to be condoned. But Arizmendi has not persuaded us that Gabbert’s actions were then illicit by clearly established law.”
- “Going forward, [this conduct] will [generally] be unlawful.... But looking backward, the law in this undeveloped area was not clear enough” at that time.
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOHN ROE, §
§
Plaintiff, §
§
V. § No. 3:18-cv-2497-B-BN
§
JOHNSON COUNTY, TEXAS, ET AL., §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
On January 20, 2021, United States Magistrate Judge David L. Horan, to whom this case
remains referred for pretrial management, denied Plaintiff’s motion for leave to conduct limited
discovery in order to respond to the qualified immunity issues raised in Defendant David
Blankenship’s summary judgment motion. See Dkt. No. 287.
Plaintiff now objects to Judge Horan’s nondispositive discovery order under Federal Rule of
Civil Procedure 72(a), further requesting that the Court grant him leave to file objections exceeding
25 pages and that the Court stay the deadline imposed by the January 20 order for Plaintiff to
respond to the summary judgment motion. See Dkt. No. 288.
Rule 72(a) provides, in applicable part, that “[t]he district judge ... must ... modify or set aside
any part of the [magistrate judge’s] order that is clearly erroneous or is contrary to law.” Id. “When
a party appeals a magistrate judge’s order, [it] must demonstrate how the order is reversible under
the applicable standard of review—de novo for error of law, clear error for fact findings, or abuse of
discretion for discretionary matters.” Jefferson-Pilot Life Ins. Co. v. Bellows, No. 3:02-cv-1992-D, 2003
WL 21501904, at *1 (N.D. Tex. June 24, 2003); see also Stanissis v. Dyncorp Int’l, LLC, Nos.
3:14-cv-2736-D & 3:15-cv-2026-D, 2015 WL 5603722, at *1 (N.D. Tex. Sept. 23, 2015) (setting
out the applicable standards of review under Rule 72(a)).
Qualified immunity is as an immunity not just from liability but from suit. See, e.g., Ashcroft
v. Iqbal, 556 U.S. 662, 685 (2009) (“The basic thrust of the qualified-immunity doctrine is to free
officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’” (citation
omitted)); cf. Wicks v. Miss. State Employment Servs., 41 F.3d 991, 994 (5th Cir. 1995) (a discovery
order that denies the defendant “the benefits of the qualified immunity defense” vests the Court of
Appeals “with the requisite jurisdiction to review the discovery order” (footnote omitted)).
And, when the defense is asserted, at least at the pleadings stage, “the plaintiff bears the
burden of pleading facts that demonstrate liability and defeat immunity.” Shaw v. Villanueva, 918
F.3d 414, 416-17 (5th Cir. 2019) (citing Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014);
McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)). This unique
burden—to defeat immunity—continues at summary judgment, where “[a] good-faith qualified
immunity defense alters the usual summary judgment burden of proof,” such that, although the
evidence remains viewed “in the light most favorable to the nonmoving party, the plaintiff bears the
burden of demonstrating that a defendant is not entitled to qualified immunity.” Valderas v. City of
Lubbock, 937 F.3d 384, 389 (5th Cir. 2019) (per curiam) (citation omitted).
A plaintiff must demonstrate that a defendant is not entitled to qualified immunity by
establishing two prongs—one factual, “whether the facts, taken in the light most favorable to the
plaintiff, show the officer’s conduct violated a federal constitutional or statutory right,” Luna v.
Mullenix, 773 F.3d 712, 718 (5th Cir. 2014) (citations omitted), reversed on other grounds, 577 U.S.
7 (2015) (per curiam)—and one legal, “whether the defendant’s conduct was objectively reasonable
in light of the clearly established law at the time of the incident,” Charles v. Grief, 522 F.3d 508, 511
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(5th Cir. 2008).
Before considering a summary judgment motion, discovery may be necessary to rule on the
first prong, but no discovery is necessary to rule on the second. And courts can—and often
do—decide that a defendant is entitled to qualified immunity on the second prong alone. See, e.g.,
Arizmendi v. Gabbert, 919 F.3d 891, 904 (5th Cir. 2019) (“Knowing or reckless false statements in
a warrant affidavit are not to be condoned. But Arizmendi has not persuaded us that Gabbert’s
actions were then illicit by clearly established law.”); Okorie v. Crawford, 921 F.3d 430, 439-40 (5th
Cir. 2019) (“Going forward, [this conduct] will [generally] be unlawful.... But looking backward, the
law in this undeveloped area was not clear enough” at that time.).
So, to put it plainly, even if the plaintiff can establish a constitutional violation, if he cannot
carry his burden as to the clearly-established prong, game over. The Court will dismiss the plaintiff’s
action on qualified immunity grounds.
Against this background, the Court considers Plaintiff’s objections.
Plaintiff is correct that Zapata articulates the steps a district court must take in an order
authorizing limited qualified immunity discovery—to avoid entering an order that would deny the
defendant the benefits of the defense. The first step of this procedure requires the Court to find that
the complaint alleges facts sufficient to overcome qualified immunity. At the second step, the Court
must “identify any questions of fact it need[s] to resolve before it would be able to determine whether
the defendants [are] entitled to qualified immunity.” Zapata, 750 F.3d at 485; see also Zanitz v. Seal,
602 F. App’x 154, 163 (5th Cir. 2015) (per curiam) (“Even a ‘limited discovery’ order does not satisfy
the second step if ‘the district court [does] not identify any questions of fact it need[s] to resolve
before it would be able to determine whether the defendants [are] entitled to immunity.’” (citation
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omitted)). And the third step requires an examination of the specific discovery requests.
But, here, Judge Horan was not required to walk through these steps in his order denying
Plaintiff’s motion for leave because Plaintiff failed to carry the burden the Court imposed on him.
As Judge Horan first explained in his December 1, 2020 order inviting Plaintiff to move for
leave,
[a]ny motion for leave must include: (1) the specific interrogatories, if any, that
Plaintiff wants to send to Blankenship; (2) a list of the specific documents or specific
categories of documents, if any, that Plaintiff wants to obtain from Blankenship; and,
most importantly, (3) an explanation of why this discovery is necessary to enable
Plaintiff to respond to the specific qualified immunity issues raised in the motion for
summary judgment.
Dkt. No. 282 at 2.
Plaintiff’s motion for leave did not follow these requirements by sufficiently explaining why
the voluminous discovery he has requested—29-numbered interrogatories and 23-numbered requests
for production, see Dkt. No. 284—is needed to establish that Blankenship is not entitled to qualified
immunity. As Judge Horan correctly observed, Blankenship has moved, at least in the alternative,
solely as to the clearly-established prong.
And, given controlling precedent on this prong from the Supreme Court and the Fifth
Circuit, Plaintiff’s burden in this regard is substantial considering the unique facts of this case. See,
e.g., Brown v. Tarrant Cnty., Tex., ___ F.3d ____, No. 19-10549, 2021 WL 150427, at *4 (5th Cir.
Jan. 18, 2021) (Under the clearly-established prong, “‘the dispositive question is whether the
violative nature of particular conduct is clearly established.’ [So, t]he plaintiff must identify
controlling precedent that makes the unlawfulness of the officer’s conduct sufficiently clear that a
reasonable officer would have understood his conduct violated that right.” (quoting Morrow v.
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Meachum, 917 F.3d 870, 874-75 (5th Cir. 2019); citing Keller v. Fleming, 952 F.3d 216, 225 (5th Cir.
2020))).
So, until Plaintiff responds to the motion for summary judgment, to address the clearly-
established prong, the Court will not enter an order that—given the obvious breadth of the discovery
that Plaintiff seeks—would deny Blankenship the benefits of the qualified immunity defense. For
example, the second Zapata step requires the district court to identify the questions of facts that the
Court must resolve “before it would be able to determine whether” Blankenship is “entitled to
qualified immunity.” 750 F.3d at 485. But, absent controlling authority to support the second prong
of qualified immunity, the Court has before it no questions of fact that it must resolve. It
may—indeed, it must—determine that Blankenship is entitled to immunity because Plaintiff has
failed to show that he is not.
Further, as Judge Horan explained in his January 20 order, Plaintiff may still file a motion
under Federal Rule of Civil Procedure 56(d). But that motion in the context of the motion for
summary judgment on qualified immunity would need to not only include requests more narrowly
tailored than Plaintiff’s previous requests but also would need to cite controlling authority in place
at the time of the incidents underling Plaintiff’s claims that makes the unlawfulness of Blankenship’s
alleged conduct sufficiently clear that a reasonable officer would have understood that what
Blankenship did violated a constitutional right. See, e.g., Hutcheson v. Dallas Cnty., Tex., No.
3:17-cv-2021-BN, 2020 WL 1692950, at *16 (N.D. Tex. Apr. 7, 2020) (“[A]s the Supreme Court
and the Fifth Circuit have ‘repeatedly stressed’ to lower courts, ‘[t]he clearly established standard [
] requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances
before him. The rule’s contours must be so well defined that it is clear to a reasonable officer that his
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conduct was unlawful in the situation he confronted. This requires a high degree of specificity.”
(quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018); internal quotation marks omitted));
see also Wesby, 138 S. Ct. At 590 (“[C]ourts must not ‘define clearly established law at a high level
of generality, since doing so avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.” (citation omitted); City of Escondido v. Emmons, 139
S.Ct. 500, 503 (2019) (per curiam) (“In this case, the Court of Appeals contravened those settled
principles. The Court of Appeals should have asked whether clearly established law prohibited the
officers from stopping and taking down a man in these circumstances. Instead, the Court of Appeals
defined the clearly established right at a high level of generality by saying only that the ‘right to be
free of excessive force’ was clearly established.”).
For these reasons, the Court GRANTS leave to file the overly-long objections,
OVERRULES Plaintiff's objections, see Dkt. No. 288, and AFFIRMS Judge Horan’s January 20
order [Dkt. No. 287]. The Court also DENIES the motion to stay the deadlines set by January 20
order. See Dkt. No. 288.
If Plaintiff needs more time to respond to the motion for summary judgment, he should confer
with counsel for Blankenship and then file a motion.
SO ORDERED.
DATE: February 18, 2021.
UXITED STATES DISTRICT JUDGE
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