Hibbs v. Mercer et al
ORDER granting 17 Motion to Stay. Discovery in this matter is STAYED pending a ruling on the Motion to Dismiss. Defendants shall file a status report within ten days of a ruling, if any portion of the case remains, to advise whether a Scheduling Conference should be set, by Magistrate Judge Kathleen M. Tafoya on 4/28/2021.(jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 21–cv–00166–RM–KMT
NICOLE SMITH, and
Before the court is Defendants’ “Motion for Stay.” ([“Motion”], Doc. No. 17.) No
response has been filed to the Motion, and the time to do so has lapsed.1 For the following
reasons, the Motion is GRANTED.
Pro se Plaintiff John Hibbs,2 an inmate in the custody of the Colorado Department of
Corrections [“CDOC”] at the Fremont Correctional Facility [“FCF”], brings this lawsuit,
Given that Plaintiff is an unrepresented prisoner, Defendants did not have a duty to confer with
Plaintiff prior to the filing of this Motion. D.C.COLO.LCivR 7.1(b).
Mindful of Plaintiff’s pro se status, the court “review[s] his pleadings and other papers liberally
and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S.
519, 520–21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than
formal pleadings drafted by lawyers”).
pursuant to 42 U.S.C. § 1983, asserting violations of his Eighth Amendment rights by four
individual CDOC employees, Defendants Rick Mercer, Charisse Upshaw, Nicole Smith, and
Misty Zade. ([“Complaint”], Doc. No. 1.) Plaintiff alleges, specifically, that while he was
confined at FCF, Defendants “ignore[d] and delay[ed] providing” him with “adequate and timely
medical care.” (Id. at 6.) In the Complaint, Plaintiff requests monetary damages, as well as
declaratory relief. (Id. at 11.)
On March 23, 2021, Defendants responded to Plaintiff’s allegations by filing a motion to
dismiss the Complaint, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Doc. No. 15.) One week later, on March 29, 2021, Defendants filed the present Motion, asking
that discovery in this matter be stayed, pending resolution of the motion to dismiss. (Mot. 1.)
Defendants argue that a discovery stay is appropriate in this case because the motion to dismiss
invokes qualified immunity as to each of Plaintiff’s claims. (Id. at 2-3.)
The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings.
Rule 26(c), however, permits a court to “make an order which justice requires to protect a party .
. . from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c). Further, “[t]he power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (citing
Kan. City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)).
In this District, a stay of discovery is generally disfavored. See, e.g., Rocha v. CCF
Admin., No. 09-cv-01432, 2010 WL 291966, at *1 (D. Colo. Jan. 20, 2010); Jackson v. Denver
Water Bd., No. 08-cv-01984, at *1 (D. Colo. Dec. 15, 2008); Chavez v. Young Am. Ins. Co., No.
06-cv-02419, at *2 (D. Colo. Mar. 2, 2007). Nevertheless, the decision whether to stay
discovery rests firmly within the sound discretion of the court. United Steelworkers of Am. v. Or.
Steel Mills, Inc., 322 F.3d 1222, 1227 (10th Cir. 2003) (quoting Landis, 299 U.S. at 254).
In ruling on a motion to stay discovery, five factors are generally considered: “(1) [the]
plaintiff’s interests in proceeding expeditiously with the civil action and the potential prejudice
to [the] plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4)
the interests of persons not parties to the civil litigation; and (5) the public interest.” String
Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934, 2006 WL 8949955, at *2 (D. Colo.
Mar. 30, 2006); see United Steelworkers, 322 F.3d at 1227. Further, “a court may decide that in
a particular case it would be wise to stay discovery on the merits until [certain challenges] have
been resolved.” 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2040, at 198 (3d ed. 2010). “[A] stay may be appropriate if resolution of a
preliminary motion may dispose of the entire action.” Serv. First Permits, LLC v. Lightmaker
Vancouver (Internet) Inc., No. 18-cv-02089, 2019 WL 109335, at *3 (D. Colo. Jan. 4, 2019)
(quoting Elec. Payment Sols. of Am., Inc., No. 14-cv-02624, 2015 WL 3940615, at *1 (D. Colo.
June 25, 2015)).
In this case, as to the first factor, there is no evidence to suggest that Plaintiff will be
prejudiced by a discovery stay. Indeed, Plaintiff has not responded, or otherwise expressed
opposition to the present Motion. The first factor, therefore, weighs in favor of the imposition of
a stay. See Frasier v. Evans, No. 15-cv-01759, 2015 WL 6751136, at *2 (D. Colo. Nov. 5, 2015)
(finding the first factor to weigh in favor of a stay, because the plaintiff did not oppose the
As to the second factor, Defendants insist that “proceeding with discovery on multiple
claims against a defendant while there is a pending dispositive motion almost always will
constitute a burden on the CDOC Defendants.” (Mot. 4.) In making that argument, Defendants
stress that they have asserted qualified immunity to each of Plaintiff’s claims. (Id. at 2-3.)
Qualified immunity “give[s] government officials a right, not merely to avoid standing trial, but
also to avoid the burdens of such pretrial matters as discovery.” Behrens v. Pelletier, 516 U.S.
299, 308 (1996) (alterations omitted) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
The Tenth Circuit has made clear that “qualified immunity questions should be resolved at the
earliest possible stage in litigation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012)
(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)) (per curiam) (alterations omitted). In
addition, “discovery generally should be avoided once qualified immunity is raised,” unless the
plaintiff demonstrates “how [such] discovery will raise a genuine fact issue as to the
defendant[’s] qualified immunity claim.” Martin v. Cty. of Santa Fe, 626 Fed. App’x 736, 740
(10th Cir. 2015) (citing Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1387 (10th Cir. 1994)). Here,
Plaintiff has made no such demonstration.
And, importantly, nearly all of Plaintiff’s claims appear to be subject to a qualified
immunity defense. See Rome v. Romero, 225 F.R.D. 640, 643 (D. Colo. 2004) (explaining that a
qualified immunity defense is available only to claims for monetary damages, made against an
individual government official, in his or her individual capacity). In this case, Defendants are all
alleged to be government officials, and the claims are asserted against each Defendant in his or
her individual capacity only. (Compl. 2-4.)
Although Plaintiff does request certain declaratory relief,3 in addition to monetary
damages, there is no question that allowing limited discovery to proceed as to those claims
would effectively rob Defendants of their qualified immunity defense. Indeed, in this case, it
would be particularly difficult to distinguish between discovery related to claims that may be
subject to qualified immunity, and those that are not. Specifically, Plaintiff’s Eighth Amendment
claims for declaratory relief, which would not be subject to qualified immunity, would result in
discovery of the same information that would be relevant to his Eighth Amendment claims for
monetary damages, which potentially would be subject to qualified immunity. Given that
qualified immunity “is both a defense to liability and a limited ‘entitlement not to stand trial or
face the other burdens of litigation,” such a scenario would be inappropriate. See Ashcroft v.
Iqbal, 556 U.S. 662, 672 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Accordingly, the second factor supports the imposition of a stay. See Chapman v. Fed. Bureau
of Prisons, No. 15-cv-00279-WYD-KLM, 2015 WL 4574863, at *3 (D. Colo. July 30, 2015)
(finding the second factor weighed in favor of staying discovery, even though qualified
immunity was only applicable as to some of the claims, because “it would be difficult for the
parties and the Court to distinguish between discovery related to the claims that may be subject
to qualified immunity and those that are not”).
Looking to the remaining String Cheese Incident factors, the third “court convenience”
factor weighs in favor of stay. Indeed, it is certainly more convenient for the court to enter a stay
until it is clear which of Plaintiff’s claims, if any, will move forward. The fourth factor bears no
Specifically, Plaintiff requests “a declaration the defendants violated Plaintiff’s rights.” (Compl.
weight, as there are no non-parties with significant, particularized interests in this case. As to the
fifth factor, the general public’s primary interest in this case is an efficient and just resolution.
Avoiding wasteful efforts by the court and the litigants serves that purpose.
Therefore, considering the String Cheese Incident factors together, as well as the strong
interest of resolving questions of immunity before subjecting government officials to the
vicissitudes of litigation, a stay of discovery is appropriate in this case.
Accordingly, it is
ORDERED that the “Motion for Stay” (Doc. No. 17) is GRANTED. Discovery in this
matter is STAYED pending a ruling on the Motion to Dismiss. Defendants shall file a status
report within ten days of a ruling, if any portion of the case remains, to advise whether a
Scheduling Conference should be set.
This 28th day of April, 2021.
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