Wanstallv. Armijo et al.

Filing 114

ORDER Sustained in part and Overruled in part 101 Objection by the Individual Defendants to Magistrate Judge Order Denying Motion to Stay Based on Qualified Immunity; denied as moot 103 Motion to Stay; denied as moot 112 Emergency Motion to E xpedite;ORDERED that the taking of the individual defendants' depositions is STAYED pending the resolution of the individual defendants' Motion to Dismiss 77 ; ORDERED that the individual defendants' objections are OVERRULED in all other respects by Judge Philip A. Brimmer on 9/16/2014.(agarc, ) Modified on 9/17/2014 to correct text (agarc, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02789-PAB-BNB
RALEN SHANE WANSTALL,
Plaintiff,
v.
JOSEPH ARMIJO, Correctional Officer, USP-Florence, in his individual capacity,
JEFFREY KAMMRAD, Senior Officer, USP-Florence, in his individual capacity,
CHARLES DANIELS, Warden, USP-Florence, in his individual capacity,
JANE/JOHN DOE, Associate Warden, USP-Florence, in his or her individual capacity,
FEDERAL BUREAU OF PRISONS, and
CHARLES SAMUELS, Director, Federal Bureau of Prisons, in his official capacity,
Defendants.

ORDER

This matter is before the Court on the Objections by the Individual Defendants to
Magistrate Judge Order Denying Motion to Stay Based on Qualified Immunity [Docket
No. 101] filed by Joseph Armijo, Jeffrey Kammrad, and Charles Daniels (the “individual
defendants”). The subject of the individual defendants’ appeal is the magistrate judge’s
August 20, 2014 order [Docket No. 100] denying the individual defendants’ Motion to
Stay Discovery and to Vacate Deadlines in Scheduling Order [Docket No. 87].
The following facts are relevant to resolving defendants’ objections. In 2010,
plaintiff notified United States Bureau of Prisons (“BOP”) staff members at USPLewisburg that he was dropping out of the Sureños prison gang. Docket No. 75 at 3,
¶ 11. In 2011, the BOP transferred plaintiff to USP-Florence. Id. at 4, ¶ 19. At USPFlorence, plaintiff was placed in the Special Management Unit (“SMU”). Id. at 4, ¶ 20.

He notified staff at USP-Florence that he was not to have contact with active Sureños
members. Id. at 6, ¶ 29. On October 12, 2011, while housed at the USP-Florence
SMU, plaintiff was assaulted by an active Sureños gang member while under the
supervision of Correctional Officers Armijo and Kammrad. Id. at 8, ¶¶ 48-51. Plaintiff
suffered multiple stab wounds. Id. at 8, ¶ 55. On July 18, 2012, plaintiff was
transferred to a BOP facility in Kentucky. Id. at 9, ¶ 63.
On July 28, 2014, plaintiff filed the Second Amended Complaint and Jury
Demand. Docket No. 75. Plaintiff brings a claim for violation of the Eighth Amendment
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), against each of the individual defendants and Jane/John Doe,
Associate Warden at USP-Florence, in their individual capacities. Docket No. 75 at 1415. Plaintiff’s second amended complaint also added claims against the BOP and
Charles Samuels, director of the BOP, in his official capacity. Id. at 16. On July 30,
2014, the individual defendants filed a motion to dismiss on the issue of qualified
immunity, arguing that plaintiff failed to allege the individual defendants’ personal
participation in the allegedly unconstitutional conduct and failed to allege sufficient facts
to support an Eighth Amendment claim. Docket No. 77 at 7, 10. On August 7, 2014,
the individual defendants filed the subject motion to stay discovery and vacate the
scheduling order deadlines, arguing that discovery should be stayed pending resolution
of the qualified immunity defense raised by the individual defendants. Docket No. 87.
Plaintiff responded, arguing that the individual defendants’ assertion of qualified
immunity raises factual issues and is unlikely to be successful. Docket No. 94 at 2.

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Plaintiff also noted that considerable discovery has already taken place. Id. On August
20, 2014, the magistrate judge held a motions hearing and issued findings from the
bench. Docket No. 100 at 2. As relevant here, the magistrate judged denied the
individual defendants’ motion to stay based upon Rome v. Romero, 225 F.R.D. 640 (D.
Colo. 2004), and L.J. v. Parker Personal Care Homes, Inc., No. 13-cv-03319-WJMBNB, 2014 WL 1515574 (D. Colo. April 18, 2014), and ordered that def endants make
supplemental discovery responses on or before September 10, 2014 and that the
depositions of the individual defendants be taken between September 15 and October
10, 2014. Id. at 2-3. On August 25, 2014, the individual defendants filed the present
objection, arguing that the magistrate judge’s denial of their motion to stay was clearly
in error. Docket No. 101 at 5. On August 26, 2014, the individual defendants filed a
motion seeking an expedited stay of the magistrate judge’s order pending the resolution
of their objection, seeking to stay depositions of the individual defendants. Docket No.
103 at 1. On September 15, 2014, the individual defendants filed an emergency motion
seeking to expedite the resolution of their objections. Docket No. 112. The individual
defendants indicate that their depositions are scheduled for September 23 and 29, and
October 1. Id. at 2. Plaintiff did not file a response to the individual defendants’
objections, but has responded to the em ergency motion.1
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Plaintiff argues that, because Fed. R. Civ. P. 72(a) does not provide a specific
time in which to respond to an objection on a nondispositive order, D.C.COLO.LCivR
7.1(d) affords him 21 days from the service of the individual defendants’ objections in
which to file a response. Docket No. 113 at 3. However, plaintiff does not account for
the fact that Rule 72(a), unlike Rule 72(b), does not provide for a response to an
objection as a matter of course. Moreover, given that the individual defendants’
depositions were to be scheduled between September 15 and October 10, 2014 and
that the individual defendants filed two motions to expedite resolution of the objections,
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District courts review magistrate judges’ orders regarding nondispositive motions
under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); Fed.
R. Civ. P. 72(a). Under this standard of review, a magistrate judge’s finding should not
be rejected merely because the Court would have decided the matter differently. See
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). A district court must
affirm a magistrate judge’s decision unless “‘on the entire evidence[, the district court] is
left with the definite and firm conviction that a mistake has been committed.’” Ocelot Oil
Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The individual defendants first argue that, because a qualified immunity defense
has been raised, discovery should be stayed until the defense is resolved. Docket No.
101 at 5. Qualified immunity shields government officials from claims for money
damages absent a showing that (1) the official violated a constitutional right and (2) the
right was “clearly established” at the time the challenged conduct occurred. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides a defense to trial
and the other burdens of litigation such as discovery, rather than just liability. See
Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2009). The Supreme Court has suggested that the threshold
question of qualified immunity should be resolved before permitting discovery.
Crawford-El v. Britton, 523 U.S. 574, 598 (1998). However, a qualified immunity

the exigency of this matter was apparent. In any event, the Court has reviewed
plaintiff’s arguments in his opposition to the individual defendants’ motion to stay
discovery and plaintiff’s arguments in his response to the emergency motion.
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defense does not automatically bar all discovery. See Currier v. Doran, 242 F.3d 905,
916-17 (10th Cir. 2001); see id. at 914 (although qualified immunity protects public
officials “from the costs associated with defending against lawsuits, particularly
baseless ones, it d[oes] not follow that a defendant’s claim of qualified immunity c[an]
always be resolved before at least some discovery [is] conducted.”) (citing Crawford-El,
523 U.S. at 591-93 & 593 n.14). Rather, def endants asserting qualified immunity are
entitled to be shielded from “unnecessary and burdensome discovery.” Rome, 225
F.R.D. at 643 (quoting Crawford-El, 523 U.S. at 598). As the Tenth Circuit has stated,
“[q]ualified immunity does not shield government officials from all discovery but only
discovery which is either avoidable or overly broad. Discovery designed to flesh out the
merits of plaintiff’s claim before a ruling on the immunity defense . . . would certainly fall
within this category.” Garrett v. Stratman, 254 F.3d 946, 953 (10th Cir. 2001)
(quotations omitted). Moreover, as noted in Rome, qualified immunity’s shield against
burdensome discovery is not applicable to government entities or to claims for
declaratory or injunctive relief. 225 F.R.D. at 643.
The magistrate judge made reference to Rome, where the court considered the
proper scope of a stay of discovery when qualified immunity had been raised in a
motion for summary judgment. Id. at 644-45. The court determined the defendantentities not entitled to a stay of discovery on claims against them. Id. The court further
determined that limited discovery relating directly to the contested facts regarding the
specific incident underlying the claims and defense of immunity was appropriate, but
stayed all other discovery as it related to claims brought against the individual

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defendants. Id. The magistrate judge also referred to Parker Personal Care, where
plaintiff brought 42 U.S.C. § 1983 claims against defendants in their individual and
official capacities and the defendants, in their individual capacities, filed a motion to
dismiss raising the qualified immunity defense. 2014 WL 1515574, at * 1. The
magistrate judge, citing Rome, granted a stay prohibiting discovery that sought
information “other than that relating to disputed factual issues regarding the actual
events giving rise to the qualified immunity defense” and permitted discovery, as
relevant here, to the extent it sought information from the individual defendants as
ordinary fact witnesses. Id. at *2.
The individual defendants fail to make a compelling case that clear error exists in
the decision not to stay discovery in its entirety. Plaintiff brings claims against the BOP
and Director Samuels in his official capacity and seeks injunctive relief concerning his
current conditions of confinement, none of which are subject to the qualified immunity
defense. Docket No. 75 at 16-17. Although the individual defendants argue that they
would necessarily be involved in discovery related to such claims, qualified immunity
does not provide a broad protection against all discovery. See Rome, 225 F.R.D. at
645 (permitting discovery related to claims for declaratory and injunctive relief and
“seeking information regarding the individual Defendants’ version of the incidents in
question”). The Court also rejects the individual defendants’ argument that, regardless
of whether qualified immunity has been asserted, defendants are entitled to a stay as a
matter of course pending the resolution of the motion to dismiss. The individual
defendants fail to show that plaintiff’s claims are so obviously baseless that it would be
clear error not to entirely stay discovery at this stage of the litigation. Cf. Jensen v.
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America’s Wholesale Lender, 425 F. App’x 761, 764 (10th Cir. 2011) (holding that
“broad and conclusory nature” of plaintiff’s claims did not entitle plaintiff to overcome a
motion to dismiss, rejecting plaintiff’s argument that they could further establish claim
through discovery). Thus, the individual defendants have failed to show that discovery
should be stayed in its entirety.
The question then becomes what, if any, discovery should be permitted. The
individual defendants represent that their depositions have been scheduled between
September 15 and October 10, 2014. Docket No. 103 at 1. Depositions are g enerally
the most burdensome aspect of discovery on individual defendants. Cf. Herrera v.
Santa Fe Pub. Schs., 2012 WL 6846393, *7 (D.N.M. Dec. 20, 2012) (finding that
conducting deposition of individual defendant asserting qualified immunity defense was
unduly burdensome on individual defendant). Because the individual defendants have
raised the qualified immunity defense in a motion to dismiss, the Court must accept
plaintiff’s factual allegations as true, obviating any need for discovery in resolving the
individual defendants’ motion. Cf. Rome, 225 F.R.D. at 644 (noting that, where
summary judgment motion was pending, plaintiff and defendants offered differing
versions of the underlying incident). The fact that considerable discovery against the
individual defendants has already been conducted does not require that such discovery
continue. See Herrera, 2012 WL 6846393, at *7 (“That Romero has already been
subjected to the burdens of litigation for eighteen months does not lessen the protection
to which she is entitled under the law.”). Thus, the Court finds that the individual
defendants are entitled to a stay of discovery with respect to the taking of their own
depositions.
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The next question is whether the individual defendants should nevertheless be
subject to depositions for information relevant to plaintiff’s claim against the BOP.
Plaintiff’s response brief states only that “Plaintiff’s claim against the BOP is inextricably
intertwined with the individual defendants’ conduct, knowledge, and observations.”
Docket No. 94 at 8. However, given that plaintiff is no longer housed at USP-Florence,
it is not clear that the individual defendants have knowledge relevant to plaintiff’s claims
for injunctive relief, which seek to correct problems with his current housing and change
BOP policy. Docket No. 75 at 16-17. Moreover, it is not clear that the individual
defendants have knowledge relevant to plaintiff’s claim that the BOP and Director
Samuels “have actual knowledge of a continuing and ongoing substantial risk of serious
harm to Mr. Wanstall.” Id. at 16, ¶ 102. Thus, plaintiff has failed to identify, with any
specificity, what knowledge the individual defendants possess that is directly relevant to
his claims against the BOP. See B.T. v. Davis, 557 F. Supp. 2d 1262, 1286-87 (D.N.M.
2007) (denying request for additional discovery because plaintiff’s counsel failed to
identify how additional discovery concerning defendants’ subjective awareness would
be relevant to summary judgment on the issue of qualified immunity). Thus, the Court
cannot conclude that the taking of the individual defendants’ depositions is warranted at
this juncture.2
For the foregoing reasons, it is
ORDERED that the Objections by the Individual Defendants to Magistrate Judge
2

To the extent this ruling affects plaintiff’s ability to respond to a summary
judgment motion, plaintiff has several remedies available including a request to extend
the deadlines for dispositive motions or responding to a motion for summary judgment
in accordance with Fed. R. Civ. P. 56(d).
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Order Denying Motion to Stay Based on Qualified Immunity [Docket No. 101] are
SUSTAINED in part and OVERRULED in part. It is further
ORDERED that the taking of the individual defendants’ depositions is STAYED
pending the resolution of the individual defendants’ Motion to Dismiss [Docket No. 77].
It is further
ORDERED that the individual defendants’ objections are OVERRULED in all
other respects. It is further
ORDERED that defendants’ Expedited Motion by Individual Defendants for
Immediate State of Order of Magistrate Judge Pending Resolution of Objections
[Docket No. 103] is DENIED as moot. It is further
ORDERED that defendants’ Emergency Motion by Individual Defendants for
District Judge to Expedite Resolution of Objections to Order of Magistrate Judge
Denying Motion to Stay Based on Qualified Immunity [Docket No. 112] is DENIED as
moot.

DATED September 16, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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