Collar et al v. Austin
ORDER denying 10 Motion to Stay. Signed by Chief Judge William H. Steele on 9/30/2014. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
REED COLLAR, et al., etc.,
TREVIS AUSTIN, etc.,
) CIVIL ACTION 14-0349-WS-B
This matter is before the Court on the defendant’s motion to stay. (Doc.
10). The plaintiffs have filed a response and the defendant a reply, (Docs. 14, 16),
and the motion is ripe for resolution. After careful consideration, the Court
concludes that the motion is due to be denied.
The plaintiffs’ decedent (“Collar”) was a student at the University of South
Alabama (“the University”) when he was shot and killed by the defendant, a police
officer employed by the University. Count One is a claim for violation of the
Fourth and Fourteenth Amendments, brought pursuant to Section 1983. Count
Two is a claim for wrongful death under Alabama law. (Doc. 1).
Shortly after suit was filed, the defendant filed a motion for summary
judgment, (Doc. 7), briefing on which is underway. (Doc. 11). The instant motion
seeks a stay of all proceedings – especially discovery – pending a ruling on his
motion for summary judgment.
The complaint includes considerable allegations concerning the conduct of
both Collar and the defendant in the moments leading up to the 1:00 a.m. campus
shooting. Distilled, the complaint alleges that Collar, under the influence of a
foreign substance, became mentally distressed, confused and disoriented, to the
point of taking off all his clothes and running in out of campus traffic; that he
appeared at the campus police station looking for assistance and hit the door and
window with his hands when he found the building locked; that the defendant was
inside the building and able to observe Collar by video; that it was obvious that
Collar was in need of help, was unarmed and posed no threat to anyone (there
being no one there); that the defendant, without awaiting assistance, exited the
building with his firearm drawn; and that, without any overt, aggressive action or
threat by Collar, and without first employing available non-lethal force, the
defendant discharged his firearm into Collar’s torso at point-blank range, killing
In seeking summary judgment, the defendant disagrees with the
complaint’s version of the facts, including at least his awareness of Collar’s
behavior and appearance before he exited the building; Collar’s aggressive
behavior and comments once the defendant came into contact with him; and the
defendant’s efforts to employ non-lethal force and why they failed. (Doc. 8 at 36). Relying on his version of the evidence, the defendant seeks summary
judgment as to Counts One and Two on the grounds of qualified immunity and
state-agent immunity, respectively.
The defendant asserts that, whenever the issue of qualified immunity is
raised, it should be resolved before any discovery is permitted. (Doc. 10 at 2).
“We think the matter somewhat more complicated.” Anderson v. Creighton, 483
U.S. 635, 646 n.6 (1987). “[I]t should first be determined whether the actions the
[plaintiffs] allege [the defendant] to have taken are actions that a reasonable
officer could have believed lawful. If they are, then [the defendant] is entitled to
dismissal prior to discovery.” Id. “If they are not, and if the actions [the
defendant] claims he took are different from those [the plaintiffs] allege (and are
actions that a reasonable officer could have believed lawful), then discovery may
be necessary before [the defendant’s] motion for summary judgment on qualified
immunity grounds can be resolved.” Id.
The Supreme Court repeated this rule in Crawford-El v. Britton, 523 U.S.
574 (1998). “[I]f the defendant does plead the immunity defense, the district court
should resolve that threshold question before permitting discovery.” Id. at 598.
“To do so, the court must determine whether, assuming the truth of the plaintiff’s
allegations, the official’s conduct violated clearly established law.” Id. “If the
plaintiff’s action survives these initial hurdles and is otherwise viable, the plaintiff
ordinarily will be entitled to some discovery.” Id. “Of course, the judge should
give priority to discovery concerning issues that bear upon the qualified immunity
defense, such as the actions that the official actually took, since that defense
should be resolved as early as possible.” Id. at 599-600.
The Eleventh Circuit as well has recognized that discovery is not uniformly
prohibited before a qualified immunity defense is decided. In Harbert
International, Inc. v. James, 157 F.3d 1271 (11th Cir. 1998), the plaintiff sought
discovery under Rule 56(f) – now Rule 56(d) – to combat the defendants’ motion
for summary judgment based on qualified immunity. The Court did not state that
no discovery is ever permissible but only that the trial court “‘must exercise its
discretion so that officials are not subjected to unnecessary and burdensome
discovery or trial proceedings.’” Id. at 1280 (emphasis added) (quoting CrawfordEl, 523 U.S. at 597-98). A Rule 56(d) motion “balance[s] the movant’s
demonstrated need for discovery against the burden such discovery will place on
the opposing party,” and the mere assertion of qualified immunity does not obviate
such balancing. Rather, “[i]n qualified immunity cases, [that] balancing is done
with a thumb on the side of the scale weighing against discovery.” Id.
The defendant did not address these cases in his principal brief, but in reply
he acknowledges that Anderson approves of dismissal without discovery “if the
actions alleged by the plaintiff are actions an objectively reasonable officer could
have believed to be lawful.” (Doc. 16 at 9).
The defendant’s motion, however, does not fit within that paradigm. He
does not argue that, accepting all allegations of the complaint as true, his alleged
conduct did not violate clearly established law. Instead, he argues that, under the
version of events he presents in his motion for summary judgment, his conduct did
not violate the Constitution or clearly established law. Under Anderson and
Crawford-El, such an argument does not preclude discovery prior to resolution of
the qualified immunity defense.1
As for the wrongful death claim, none of the cases cited by the defendant
stands for the proposition that state-agent immunity is to be decided before any
discovery is conducted. On the contrary, the defendant relies heavily on Ryan v.
Hayes, 831 So. 2d 21 (Ala. 2002), which states that “once the parties have had the
opportunity to conduct discovery, the defendants would have the opportunity to
seek a summary judgment on the ground that they were entitled to State-agent
immunity.” Id. at 32. That cases exist in which “[t]here is no indication in the
opinion that the parties conducted any discovery,” (Doc. 16 at 4 n.1), falls far short
of demonstrating that no discovery is permissible.
For the reasons set forth above, the defendant’s motion to stay is denied.
DONE and ORDERED this 30th day of September, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUD
Nor does it guarantee pre-resolution discovery, and the plaintiffs’ anticipated
Rule 56(d) motion, (Doc. 14 at 4), will have to cope with the “thumb on the side of the
scale” favoring the defendant. It will also have to cope with the defendant’s contention
that discovery in the previous, state lawsuit furnishes the plaintiffs all the discovery they
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