Estate of De'Von Bailey et al v. City of Colorado Springs, Colorado et al

Filing 38

ORDER Denying Defendants 34 Joint Motion to Stay Discovery Pending Ruling on Motion to Dismiss or for Early Summary Judgment, by Judge William J. Martinez on 11/17/2020.(angar, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 20-cv-1600-WJM-KMT
ESTATE OF DE’VON BAILEY, by and through its personal representatives Delisha
Searcy and Greg Bailey, and
R.B., a minor, by and through the minor’s legal guardian Laquana Gardner,
Plaintiffs,
v.
CITY OF COLORADO SPRINGS, COLORADO, a municipality,
SERGEANT ALAN VAN’T LAND, in his individual and official capacity, and
OFFICER BLAKE EVENSON, in his individual and official capacity,
Defendants.

ORDER DENYING DEFENDANTS’ JOINT MOTION TO STAY DISCOVERY PENDING
RULING ON MOTION TO DISMISS OR FOR EARLY SUMMARY JUDGMENT

On June 4, 2020, Plaintiffs Estate of De’Von Bailey, by and through its personal
representatives, Delisha Searcy and Greg Bailey, and R.B., a minor, by and through the
minor’s legal guardian, Laquana Gardner (jointly, “Plaintiffs”), filed this civil rights action
against Defendants City of Colorado Springs, Colorado, Sergeant Alan Van’t Land, in
his individual and official capacity, and Officer Blake Evenson, in his individual and
official capacity (collectively, “Defendants”), alleging that Defendants violated state and
federal laws by shooting and killing De’von Bailey on August 3, 2019. (ECF No. 1.)
On October 14, 2020, Defendants filed their motions to dismiss. (ECF Nos. 25,
27.) Three weeks later, on November 4, 2020, Defendants filed the Joint Motion to
Stay Discovery Pending Ruling on Motion to Dismiss or for Early Summary Judgment
(“Motion”) asking the Court to stay discovery on the merits of this case pending the

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Court’s ruling on Defendants’ motions to dismiss. (ECF No. 34.)
Under 42 U.S.C. § 1983, an injured person may “seek damages against an
individual who has violated his or her federal rights while acting under color of state
law.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (quoting Cillo v.
City of Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013)). The defense of
qualified immunity is available to individual defendants named in a § 1983 action and
“shields public officials . . . from damages actions unless their conduct was
unreasonable in light of clearly established law.” Gann v. Cline, 519 F.3d 1090, 1092
(10th Cir. 2008) (quotations omitted).
However, even when defendants raise the defense of qualified immunity, courts
within the District of Colorado generally disfavor a stay of all discovery. See Estate of
Ronquillo v. City & Cnty. of Denver, 2016 WL 10842586, at *3 (D. Colo. Nov. 14, 2016)
(“qualified immunity does not protect an official from all discovery, but only from that
which is ‘broad-reaching’”) (quoting Crawford-El v. Britton, 523 U.S. 574, 593, n.14
(1998) (emphasis in original)); Wanstall v. Armijo, 2014 WL 4636457, at *3 (D. Colo.
Sept. 16, 2014).
The factors the Court applies to determine the propriety of a stay are:
(1) Plaintiffs’ interests in proceeding expeditiously with the action and the potential
prejudice to Plaintiffs resulting from a delay; (2) the burden on Defendants; (3) the
convenience to the Court; (4) the interests of persons not parties to the litigation; and
(5) the public interest. See String Cheese Incident, LLC v. Stylus Show s, Inc., LLC,
2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006). W hether to stay pretrial proceedings

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is within the discretion of the trial court. See Clinton v. Jones, 520 U.S. 681, 706–07
(1997).
Having considered the five String Cheese Incident factors, the Court finds
Defendants have failed to show good cause for granting a stay. Without prejudging
Defendants’ motions to dismiss, based on the facts plausibly alleged in the Complaint,
coupled with the Supreme Court’s binding precedent in Tennessee v. Garner, 471 U.S.
1 (1985), in the Court’s view it appears that the likelihood Defendants will successfully
invoke the defense of qualified immunity is not high. See Garner, 471 U.S. at 11 (“The
use of deadly force to prevent the escape of all felony suspects, whatever the
circumstances, is constitutionally unreasonable.”).
Moreover, as Plaintiffs assert, the memories of the parties and other witnesses
may fade with the passage of time, witnesses may relocate or become unavailable, or
documents may become lost or inadvertently destroyed. (ECF No. 37 at 8 (citing Lester
v. Gene Exp., Inc., 2010 WL 743555, at *1 (D. Colo. Mar. 2, 2010)).) See also String
Cheese Incident, LLC, 2006 WL 894955, at *2 (recognizing that an unknown period of
delay “would significantly impact and prejudice plaintiff's right to pursue [its] case and
vindicate its claim expeditiously”). These risks are particularly heightened here because
the allegations suggest that the parties will rely heavily on witness testimony. The Court
understands that discovery may burden the officers involved in this action and distract
from their core professional responsibilities. However, this is always the case for
parties engaged in civil litigation, and Defendants have not established any
particularized facts suggesting that they will suffer a clearly defined and serious harm

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associated with moving forward with discovery. See Chavez v. Young Am. Ins. Co.,
2007 WL 683973, at *2 (D. Colo. Mar. 2, 2007) (recognizing that “[d]efendants always
are burdened when they are sued” but denying stay where “[t]here is no special burden
on the defendant in this case”). Here, Defendants have not asserted that Plaintiffs
have even served any discovery requests to date, much less have they demonstrated
that the requests unduly burden them. Thus, any burden on Defendants is outweighed
by Plaintiffs’ interest in proceeding with this litigation.1
Moreover, convenience to the Court weighs against granting a stay of discovery,
as cases that linger on the Court’s docket are more difficult to manage. The interests of
non-parties favor neither side. Finally, the public has an interest in efficient use of
public resources, including the Court’s resources.
In sum, the Court finds that Defendants have failed to demonstrate that a stay of
discovery is warranted. Accordingly, Defendants’ Joint Motion to Stay Discovery
Pending Ruling on Motion to Dismiss or for Early Summary Judgment (ECF No. 34) is
DENIED.

Dated this 17th day of November, 2020.
BY THE COURT:

William J. Martínez
United States District Judge

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To the extent that Defendants have a particularized concern regarding burden from a
specific discovery request, the Court will address such arguments at that time.

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