Pourya Malek v. Jeffery Green et al

Filing 50

ORDER RE 46 47 SUPPLEMENTAL BRIEFING ON DISCOVERY; DENYING DEFENDANTS' REQUEST TO STAY ALL DISCOVERY. Signed by Judge Beth Labson Freeman on 9/29/2017. (blflc2S, COURT STAFF) (Filed on 9/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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POURYA MALEK,

Case No. 17-cv-00263-BLF

Plaintiff,

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ORDER DENYING DEFENDANTS’
REQUEST TO STAY ALL DISCOVERY

v.

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JEFFERY GREEN, et al.,
Defendants.

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United States District Court
Northern District of California

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Plaintiff Pourya Malek (“Malek”) brings this civil rights suit against Officers Green,

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Favela, and Sandri (collectively, the “Officers”) (together with Malek, the “Parties”) for violations

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of 42 U.S.C. § 1983 and various state law claims. The Officers filed a motion to dismiss in which

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they asserted qualified immunity with respect to five of Malek’s § 1983 claims including: (1)

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unlawful arrest; (2) unlawful entry into Malek’s home to arrest; (3) excessive force; (4) unlawful

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post-warrant search with respect to Officers Sandri and Favela; (5) retaliation. See generally ECF

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15. Following the hearing on the Officers’ motion to dismiss on August 31, 2017, the Parties filed

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supplemental briefing regarding the Officers’ insistence that they are immune from all discovery.

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See ECF 46, 47.1 On September 27, 2017, this Court granted in part with leave to amend and

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denied in part the Officers’ motion to dismiss the Complaint. ECF 49. The Court found that as

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currently pled, qualified immunity applies to the five § 1983 claims that the Officers moved to

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dismiss. The Court also dismissed Malek’s Bane Act claim and claim for false arrest and

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imprisonment under state law. Id. Malek was given leave to amend the complaint to plead

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additional facts to support the dismissed federal and state claims. Id.

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The Officers also have a pending motion for leave to file a noticed motion for a protective order
before Magistrate Judge Howard R. Lloyd in this action. ECF 39.

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The Court construes the Officers’ supplemental brief on this matter as a renewed request to

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stay all discovery in this case pending the final resolution of their qualified immunity defense.

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The Court has considered the Parties’ briefing and the relevant authority on the issue. For the

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reasons that follow, the Officers’ request to stay all discovery is DENIED.

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The Court recognizes that “qualified immunity is an affirmative defense from suit, not

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merely from liability.” Doe By & Through Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1449–

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50 (9th Cir. 1995). Thus, “[u]nless the plaintiff’s allegations state a claim of violation of clearly

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established law, a defendant pleading qualified immunity is entitled to dismissal before the

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commencement of discovery.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The
Supreme Court has held that “[t]he basic thrust of the qualified-immunity doctrine is to free

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United States District Court
Northern District of California

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officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’” Ashcroft

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v. Iqbal, 556 U.S. 662, 685 (2009) (quotation omitted); see also Harlow v. Fitzgerald, 457 U.S.

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800, 818 (1982) (“Until this threshold immunity question is resolved, discovery should not be

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allowed”). However, while “[d]iscovery involving public officials is indeed one of the evils that

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Harlow aimed to address…neither that opinion nor subsequent decisions create an immunity from

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all discovery.” Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998). For example, the Supreme

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Court has recognized “that limited discovery, tailored to the issue of qualified immunity, will

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sometimes be necessary before a district court can resolve a motion for summary judgment.” Moss

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v. U.S. Secret Serv., 572 F.3d 962, 973 (9th Cir. 2009).

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Importantly, “the doctrine of qualified immunity does not shield defendants from state law

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claims.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013). Neither

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the Supreme Court nor the Ninth Circuit has addressed the impact of a discovery stay on a

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plaintiff’s assertion of parallel state law claims. In the absence of a mandatory stay, the Court

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retains “wide discretion in controlling discovery.” Little v. City of Seattle, 863 F.2d 681, 685 (9th

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Cir. 1988). The power of a district court to stay an action pending on its docket is “incidental to

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the power inherent in every court to control the disposition of the causes on its docket with

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economy of time and effort for itself, for counsel, and for litigants.” Landis v. North Am. Co., 299

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U.S. 248, 254 (1936).
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The Officers believe they are entitled to “immunity from all discovery.” See ECF 47. They

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argue that they should not be ordered to engage in any discovery, including meeting and

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conferring with Malek to develop a discovery schedule, until there is a final determination on their

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qualified immunity defenses. Id. ¶ 2. The law is not so broad such that an automatic stay of all

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discovery is warranted every time a defendant asserts qualified immunity with respect to certain

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claims in a lawsuit. The Officers point to no authority requiring the Court to stay all discovery in

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the circumstances here, where a federal claim and multiple state law claims have now ripened

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beyond the pleading stage.

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The Officers previously requested a stay of all discovery deadlines in this case. ECF 19.
The Court denied the Officers’ motion because it was “unclear whether Defendants’ motion to

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United States District Court
Northern District of California

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dismiss will be dispositive of the entire case.” ECF 24. Indeed, the motion was not dispositive.

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See ECF 49. Certain claims have ripened, and the Court allowed Malek leave to amend the

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federal and state law claims that were dismissed. Id. If a First Amended Complaint is filed, the

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Officers anticipate filing a further motion to dismiss based on qualified immunity. ECF 47, ¶ 8.

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Malek argues that discovery should proceed because Harlow only protects the Officers

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from “broad-reaching” discovery, and because qualified immunity does not shield defendants from

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state law claims. ECF 46. The Officers concede that neither the Supreme Court nor the Ninth

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Circuit has addressed whether a defendant’s assertion of qualified immunity with respect to

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federal claims also requires a discovery stay of parallel state law claims. ECF 47, ¶¶ 3, 5.

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Nevertheless, the Officers advance the policy argument that if state claims are “intertwined with

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the same nucleus of operative fact” as the federal claims, all discovery should be stayed. Id. ¶ 4.

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The Parties do not address the issue, noted in the Court’s Order on the motion to dismiss,

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that Malek’s Complaint also alleges a Fourth Amendment violation for an unreasonable search

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and seizure against Officer Green. The Officers did not move to dismiss the claims against

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Officer Green for judicial deception or for his responsibility for the execution of the search

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warrant. Therefore, the issue of qualified immunity on these federal claims was never before the

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Court. In fact, “qualified immunity is generally unavailable in a judicial deception case.” Ewing v.

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City of Stockton, 588 F.3d 1218, 1228 n.16 (9th Cir. 2009) (citing Branch v. Tunnell, 937 F.2d
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1382, 1387 (9th Cir.1991) overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307

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F.3d 1119 (9th Cir. 2002)). Thus, there is no basis to stay discovery concerning Officer Green’s

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alleged conduct related to his procurement and execution of the search warrant.
As for the five § 1983 claims that the Court dismissed with leave to amend, the Court finds

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that discovery as to those claims should not move forward unless and until they ripen beyond the

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pleading stage. Harlow certainly supports the proposition that when a defendant asserts the

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qualified immunity defense against a claim for a constitutional violation, “discovery should not be

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allowed” until the threshold immunity question is resolved. 457 U.S. at 819. However, simply

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because discovery is appropriately stayed as to those claims currently subject to qualified
immunity, nothing in Harlow or its progeny mandates that the Court stay “all discovery” in the

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United States District Court
Northern District of California

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case. Rather, the Supreme Court recognized that “[t]he Harlow right to immunity is a right to

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immunity from certain claims, not from litigation in general.” Behrens v. Pelletier, 516 U.S. 299,

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312 (1996) (emphasis in original).
The Officers argue that Malek’s “parallel state law claims do not change the analysis”

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regarding a stay of discovery as to federal claims. ECF 47. The Court disagrees. Malek asserted

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state law claims for a violation of the Bane Act, negligence, assault and battery, and false arrest or

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imprisonment. See generally Complaint, ECF 1 (“Compl.”). The Court dismissed the Bane Act

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claim, as well as the claim for false arrest or imprisonment because as pled, the Officers had

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probable cause to arrest Malek. See ECF 49. The Court did not dismiss Malek’s claims under

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state law for negligence and assault and battery, with the exception that Officers Sandri and Favela

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are entitled to statutory immunity for their conduct related to the execution of the search warrant.

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Although discovery on Malek’s negligence and assault and battery claim may overlap with the

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now dismissed excessive force claim, there is no requirement that the Court stay discovery on

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parallel state law claims.2 Indeed, the Officers acknowledge an absence of controlling authority

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on the issue, and instead cite to cases for the non-controversial position that some district courts

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The Court dismissed Malek’s excessive force claim under the second prong of qualified
immunity. However, these allegations adequately pled state law claims for negligence and assault
and battery. ECF 49.
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exercise their inherent discretion differently than others. ECF 47, ¶¶ 3-4. As such, discovery shall

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proceed with respect to the remaining state law claims.

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It is not in the interests of judicial economy, nor required by law, for the Court to stay all

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discovery and unnecessarily prolong this case. Malek has alleged federal claims against Officer

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Green for his procurement and execution of the search warrant, as well as state law claims against

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the Officers for negligence and assault and battery. Proceeding with discovery does not prejudice

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the Officers or “destroy” the benefit articulated in Harlow.

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The Parties are directed as follows:

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(1)

The Officers’ request to stay all discovery is DENIED;

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(2)

Discovery shall be stayed with respect to the claims that were dismissed in the
Court’s September 27, 2017 Order;

United States District Court
Northern District of California

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(3)

Discovery shall proceed with respect to the federal claims against Officer Green for

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his procurement and execution of the search warrant, as well as the surviving state

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law claims for negligence and assault and battery with the exception that Officer

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Favela and Officer Sandri are statutorily immune from liability for their execution

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of the search warrant;

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(4)

All further discovery disputes are properly directed to Judge Lloyd who has the

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authority to fashion protective orders as needed to protect the Parties in light of the

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circumstances of this case.

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(5)

The Parties shall meet and confer to develop a pre-trial schedule including

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discovery deadlines and submit a proposed schedule to the Court on or before

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October 20, 2017.

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IT IS SO ORDERED.

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Dated: September 29, 2017
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BETH LABSON FREEMAN
United States District Judge
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