Andrews v. Scott et al

Filing 67

ORDER denying without prejudice 46 Defendants' Motion to Enter Judgment for Costs ; granting 60 Defendants Deputy Brandon Marshall and Sergeant Robert Kizzire's Motion to Stay Proceedings Pending Appeal. All proceedings in this case are stayed pending the outcome of the interlocutory appeal (Doc. 57 ). The Clerk is directed to add a stay flag to this case. Signed by Judge Sheri Polster Chappell on 10/18/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANITA ANDREWS,
Plaintiff,
v.

Case No: 2:16-cv-814-FtM-99MRM

MIKE SCOTT, DEPUTY BRANDON
MARSHALL, SERGEANT ROBERT
KIZZIRE, DEPUTIES JOHN AND
MARY DOES, JANE AND JOHN
DOES and CORIZON HEALTH,
INC.,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants Deputy Brandon Marshall and
Sergeant Robert Kizzire’s Motion to Stay Proceedings Pending Appeal (Doc. 60) filed on
October 3, 2017, which was joined by Defendant Corizon Health (Doc. 65). Plaintiff has
not filed a response and the time to do so has expired.
Defendants filed a Notice of Appeal (Doc. 57) on September 29, 2017 from the
Court’s Opinion and Order (Doc. 53) denying Deputy Marshall and Sergeant Kizzire’s
Motion to Dismiss based on qualified immunity. Judgment was not entered and the case
otherwise remains pending.

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The Eleventh Circuit Court of Appeals has jurisdiction over appeals from certain
interlocutory orders that do not require certification from the District Court. 28 U.S.C. §
1292(a). An order denying qualified immunity is immediately appealable even though it
is interlocutory. See Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). Deputy Marshall and
Sergeant Kizzire seek a stay of all proceedings pending resolution of the interlocutory
appeal, arguing that the claims in this case are intertwined and involve the same
allegations of similar issues of law. Indeed, Plaintiff’s derivative claims against Sheriff
Mike Scott necessarily fail if the officers acted within constitutional bounds.
Seeing no opposition from Plaintiff and otherwise reviewing the arguments of
counsel, the Court agrees that proceeding with this case and engaging in discovery
against Sheriff Scott and Corizon Health, Inc. will only result in piecemeal litigation and a
waste of judicial resources. Therefore, the Court will stay the case pending the outcome
of the interlocutory appeal. The Court will deny Defendants’ Motion to Enter Judgment
for Costs (Doc. 46) without prejudice, which may be refiled once the stay has been lifted.
Accordingly, it is now
ORDERED:
1.

Defendants Deputy Brandon Marshall and Sergeant Robert Kizzire’s Motion

to Stay Proceedings Pending Appeal (Doc. 60) is GRANTED. All proceedings in this
case are stayed pending the outcome of the interlocutory appeal (Doc. 57).
2.

The Clerk is directed to add a stay flag to this case.

3.

Defendants’ Motion to Enter Judgment for Costs (Doc. 46) is denied

without prejudice.

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DONE and ORDERED in Fort Myers, Florida this 18th day of October, 2017.

Copies: All Parties of Record

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