Horace v. City of Richardson Texas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERRELL HORACE, ET AL., §

§

Plaintiffs, §

§

V. § No. 3:23-cv-1424-D-BN

§

KANTRELLE LYLES, ET AL., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This lawsuit brought under 42 U.S.C. § 1983 for alleged violations of the

Constitution by Defendant City of Richardson and two of its police officers,

Defendants Brian Ray and Kantrelle Lyles, concerns the death of Cornelius Allen Lee

Boone while he was in custody at the City’s jail. See Dkt. No. 1.

All three Defendants answered, see Dkt. Nos. 4-6, and both Ray and Lyles

assert an entitlement to qualified immunity, see Dkt. No. 4 at 14-15 & Dkt. No. 5 at

14-15. Related to these assertions, in the parties’ joint scheduling proposal, Ray and

Lyles represented that they filed a letter objecting to the requirement that they make

initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) until their

entitlement to qualified immunity is resolved. See Dkt. No. 10, ¶ 3(a) & Dkt. No. 17.

Under 28 U.S.C. § 636(b)(1)(A), Senior United States District Judge Sidney A.

Fitzwater referred to the undersigned United States magistrate judge for

determination: (1) Ray and Lyles’s objection; (2) what disclosures – if any – are to be

made; and (3) a time for disclosure. See Dkt. No. 15.

After considering the parties’ court-ordered briefing as to the matters referred

by Judge Fitzwater, see Dkt. Nos. 16, 18, & 19, the Court SUSTAINS Ray and Lyles’s

objection and ORDERS that they need not make any disclosures unless and until the

Court finds that Plaintiffs have met their burden to overcome the qualified immunity

defense at the pleading stage.

Legal Standards

“Because qualified immunity is an immunity from suit, not merely a defense to

liability, ‘it is effectively lost if a case is erroneously permitted to go to trial.’” Ramirez

v. Guadarrama, 3 F.4th 129, 134 (5th Cir. 2021) (per curiam) (emphasis in original;

quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

So “a defendant’s entitlement to qualified immunity must be determined ‘at

the earliest possible stage of the litigation.’” Carswell v. Camp, 54 F.4th 307, 310 (5th

Cir. 2022) (quoting Ramirez, 3 F.4th at 133); see also Hunter v. Bryant, 502 U.S. 224,

227 (1991) (“[W]e repeatedly have stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.”).

And the established procedure under which courts must address qualified

immunity, once asserted, “prevents a defendant entitled to immunity from being

compelled to bear the costs of discovery and other pre-trial burdens.” Ramirez, 3 F.4th

at 134 (citations omitted); see also Carswell, 54 F.4th at 310 (“[O]ne of the most

important benefits of the qualified immunity defense is ‘protection from pretrial

discovery, which is costly, time-consuming, and intrusive.’” (quoting Backe v.

LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012); citation omitted)).

Consequently, all discovery is typically stayed pending a ruling on a

defendant’s entitlement to qualified immunity. See Wicks v. Miss. State Employment

Servs., Inc., 41 F.3d 991, 994-95 (5th Cir. 1995); see also Zapata v. Melson, 750 F.3d

481 (5th Cir. 2014); Backe, 691 F.3d 645; Lion Boulos v. Wilson, 834 F.2d 504 (5th

Cir. 1987); Webb v. Livingston, 618 F. App’x 201 (5th Cir. 2015) (per curiam).

But, where a defendant asserts qualified immunity – and the Court is not

currently considering a motion to dismiss the complaint (or or any portion of it) on

that basis, see Carswell, 54 F.4th at 311-12 – the Court may, under certain

circumstances, permit limited discovery that is narrowly tailored to uncover only

facts that the Court needs to rule on the defendant’s entitlement to qualified

immunity, see Wicks, 41 F.3d at 994.

That is, the United States Court of Appeals for the Fifth Circuit “has

established a careful procedure under which a district court may defer its qualified

immunity ruling if further factual development is necessary to ascertain the

availability of that defense.” Backe, 691 F.3d at 648.

And courts in this circuit have followed this “careful procedure” to determine

whether to require initial disclosures by defendants who have asserted an

entitlement to qualified immunity. See, e.g., Burkett v. Kenner Police Dep’t, No. Civ.

A. 02-1858, 2003 WL 1340294, at *1 (E.D. La. Mar. 17, 2003) (allowing the exchange

of initial disclosures targeted at identifying officers involved in incident at issue after

finding that plaintiff’s Rule 7(a) reply met the heightened pleading requirement).

Analysis

Carswell instructed district courts in this circuit that, “[w]here public officials

assert qualified immunity in a motion to dismiss, [they] must rule on the motion” and

“may not permit discovery against the immunity-asserting defendants before [ruling]

on their defense.” Carswell, 54 F.4th at 311 (citing Backe, 691 F.3d at 648).

Effectively, the same holds true where no motion to dismiss is filed and the

Court adheres to the Fifth Circuit’s “careful procedure” to authorize discovery against

a QI-asserting defendant.

First, the “careful procedure” is not triggered where the assertion of qualified

immunity turns “purely on a question of law” or where “the facts upon which” it turns

are “not disputed by the parties.” Wicks, 41 F.3d at 994 n.9 (citations omitted).

And, even where the “careful procedure” may be available, it prevents

discovery unless and until the Court “explicitly” holds that the plaintiff’s pleadings,

“taken as true, overc[o]me the qualified immunity defense.” Zanitz v. Seal, 602 F.

App’x 154, 163 (5th Cir. 2015) (per curiam) (citing Zapata, 750 F.3d at 485 n.2); see

also Hutcheson v. Dall. Cnty., Tex., 994 F.3d 477, 481 (5th Cir. 2021) (“[A] plaintiff

seeking to overcome QI must assert facts that, if true, would overcome that defense.

It is not enough broadly to seek information that might impeach the defendants’

version of events.” (citing Zapata, 750 F.3d at 481)).

So, to move past the first step of the “careful procedure,” the finding required

from the Court is, effectively, that a plaintiff’s pleadings would survive a motion to

dismiss based on qualified immunity. See Zanitz, 602 F. App’x at 163 n.8.

The Court sets this out initially because Ray and Lyles have moved the Court

to compel Plaintiffs to file a reply to their answers under Federal Rule of Civil

Procedure 7(a)(7), see Dkt. Nos. 11 & 12, and, in their court-ordered briefing on initial

disclosures, they assert, consistent with their motions to compel, that Plaintiffs have

so far failed to make allegations that, if true, overcome QI, see Dkt. No. 18.

Judge Fitzwater has previously explained the purpose of a Rule 7(a) reply:

When a plaintiff sues a public official under § 1983, the district

court must insist on heightened pleading by the plaintiff. Although a

plaintiff may comply with ordinary pleading standards in his initial

complaint, and need not anticipate a qualified immunity defense, when

a public official pleads the affirmative defense of qualified immunity in

his answer, the district court may, on the official’s motion or on its own,

require the plaintiff to reply to that defense in detail pursuant to Rule

7(a). The reply must be tailored to the assertion of qualified immunity

and fairly engage its allegations. Heightened pleading requires

allegations of fact focusing specifically on the conduct of the individual

who caused the plaintiffs’ injury. The case should not be allowed to

proceed unless plaintiffs can assert specific facts that, if true, would

overcome the defense.

Fisher v. Dall. Cnty., 299 F.R.D. 527, 532 (N.D. Tex. 2014) (cleaned up).

Whether the Court should compel Plaintiffs to file a Rule 7(a) reply has not

been referred to the undersigned. But, as the language from Fisher demonstrates, a

Rule 7(a) reply is a pleading through which a plaintiff may carry the burden to show

the Court that the allegations, taken as true, overcome the qualified immunity

defense, such that the first hurdle to obtaining discovery against QI-asserting

defendants can be overcome. See, e.g., Rusanowsky v. City of Dall., No. 3:22-cv-1132-

K, 2023 WL 1870074, at *3-*5 (N.D. Tex. Feb. 9, 2023).

And, even if Plaintiffs have, through their complaint alone, asserted specific

facts that, if true, would overcome QI, such that a Rule 7(a) reply is not needed, the

Court does not find persuasive Plaintiffs’ argument that, “[b]ecause there are no

pending motions to dismiss and limited discovery will assist the Court in making the

determination concerning qualified immunity,” “the Court should order limited

discovery.” Dkt. No. 19 at 4.

This suggestion does not comply with the Fifth Circuit’s “careful procedure”

because the Court has yet to “explicitly hold that [Plaintiffs’] pleadings, taken as true,

overc[o]me the qualified immunity defense.” Zanitz, 602 F. App’x at 163.

And, if or when the Court makes this explicit finding, before authorizing

discovery, “the Court [still] 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.’” Roe v. Johnson Cnty., Tex., No. 3:18-cv-2497-B-BN, 2021 WL 321967, at

*2 (N.D. Tex. Feb. 1, 2021) (quoting Zapata, 750 F.3d at 485; citing Zanitz, 602 F.

App’x at 163).

“Only after a plaintiff passes through these two gates will the Court examine

the specific discovery requests proposed to determine if any are narrowly tailored.”

Rusanowsky, 2023 WL 1870074, at *3 (citing Webb, 618 F. App’x at 209-11; Carswell,

54 F.4th at 311).

In sum, then, because the Court has yet to explicitly find that Plaintiffs have

met their “burden to overcome the qualified immunity defense at the pleading stage,”

the Court may not allow “even ‘minimally intrusive discovery’” against the QI-

asserting defendants, Ray and Lyles. Carswell, 54 F.4th at 313 (explaining that, in

Ashcroft v. Iqbal, 556 U.S. 662, 685-86 (2009), “the [United States Supreme] Court

ruled out even ‘minimally intrusive discovery’ against official defendants before a

ruling that plaintiff had met his burden to overcome the qualified immunity defense

at the pleading stage” (quoting Iqbal, 556 U.S. at 686)).

Conclusion

The Court SUSTAINS Defendants Brian Ray and Kantrelle Lyles’s objection

to the requirement that they make initial disclosures required by Federal Rule of

Civil Procedure 26(a)(1) until their entitlement to qualified immunity is resolved and

ORDERS that they need not make any disclosures unless and until the Court finds

that Plaintiffs have met their burden to overcome the qualified immunity defense at

the pleading stage.

SO ORDERED.

DATED: October 5, 2023

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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