Encinas v. Sanders et al
ORDER by Magistrate Judge Steven C. Yarbrough granting 44 and 52 Motions to Stay Discovery and taking under advisement Plaintiff's Rule 56(d) discovery requests, to be heard at the hearing set for 05/06/2021. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 20-1005 WJ/SCY
JUSTIN SANDERS, CLAYTON
TRUJILLO, UBALDO HERNANDEZ,
ROBERT GONZALES, VICENTE
FERNANDEZ, JOHNNY TRUJILLO,
SHAWN ROSENBARKER, MARIANNA
VIGIL, and THE NEW MEXICO
ORDER GRANTING MOTIONS TO STAY AND
TAKING UNDER ADVISEMENT RULE 56(d) DISCOVERY REQUESTS
Plaintiff Britney Encinias alleges that while she was incarcerated at Springer Correction
Center, corrections officer Justin Sanders raped her. Doc. 70 ¶¶ 13-19 (amended complaint). She
further asserts that her allegation of rape was reported to a number of supervisors (Clayton
Trujillo, Ubaldo Hernandez, Robert Gonzales, and Johnny Trujillo), officers with investigatory
powers (Shawn Rosenbarker and Vicente Fernandez) and the warden (Mariana Vigil), but no
action was taken against Defendant Sanders. Doc. 70 ¶¶ 21-22. She brings four counts in her
amended complaint: (1) civil rights claims against Defendant Sanders; (2) Eighth Amendment
claims against Defendants Clayton Trujillo, Hernandez, Gonzales, Fernandez, Johnny Trujillo,
Rosenbarker, and Vigil; (3) tort claims against Defendants Sanders and the New Mexico
Corrections Department (“NMCD”); and (4) First Amendment claims against Defendants
Sanders, Clayton Trujillo, Hernandez, Gonzales, Fernandez, Johnny Trujillo, Rosenbarker, and
Vigil. Doc. 70.
Three defendants (Fernandez, Trujillo, and Hernandez) filed motions for summary
judgment as to Count II (Eighth Amendment claims), raising the defense of qualified immunity.1
Docs. 42, 49, 50. At the same time, those Defendants also filed motions to stay discovery now
that they have asserted the defense of qualified immunity. Docs. 44, 52. Plaintiff opposes the
requested stays. Docs. 57, 61.2 In response to the three pending motions for summary judgment
regarding Count II, Plaintiff also requested additional discovery under Federal Rule of Civil
Procedure 56(d). Docs. 55, 62, 63. Judge Johnson stayed briefing on the merits of the summary
judgment motions, pending resolution of these discovery matters, but allowed Defendants to
respond to Plaintiff’s Rule 56(d) discovery requests. Doc. 71. Accordingly, Defendants
Hernandez and Trujillo filed a reply in opposition to Rule 56(d) discovery.3 Doc. 73. For the
reasons set forth below, the Court grants the motions to stay Defendants Fernandez, Trujillo, and
Hernandez have filed, subject to any Rule 56(d) discovery the Court allows. The Court will hear
argument on all Rule 56(d) discovery motions pending before it on May 6, 2021.
Two other dispositive motions are also pending: (1) Plaintiff’s Motion to Dismiss Crossclaim
(Doc. 22); and (2) NMCD’s Motion for Judgment on the Pleadings as to Count II (Doc. 24).
Those motions are fully briefed and no party asserts that more discovery is needed to properly
respond to either motion. Accordingly, the Court will not discuss those pending motions in this
order addressing discovery.
Supervisory defendants (Clayton Trujillo, Hernandez, Gonzales, Fernandez, Johnny Trujillo,
Rosenbarker, and Vigil) also recently filed a motion for summary judgment as to Count IV (First
Amendment claims), raising the defense of qualified immunity (Doc. 78) and another motion to
stay discovery pending resolution of their qualified immunity assertions (Doc. 79). Plaintiffs
oppose both motions and the parties are currently briefing them. Although the motion to stay that
is still being briefed is similar to the fully briefed motions to stay, it is possible that Plaintiffs
may raise new arguments in their yet-to-be-filed briefs opposing a stay. Therefore, the present
Order only relates to the motions to stay that have been fully briefed as of the date of this Order
(Docs. 44 and 52).
Prior to Judge Johnson entering his order staying briefing, Defendant Fernandez filed a reply to
his motion for summary judgment, addressing both the merits and Plaintiff’s Rule 56(d)
discovery request. Doc. 64.
1. Motions to Stay
Supervisory defendants Fernandez, Trujillo, and Hernandez move to stay all discovery as
to all claims and all defendants on the ground that they have raised the defense of qualified
immunity. Docs. 44, 52. “[Q]ualified immunity is not only a defense to liability but also
entitlement to immunity from suit and other demands of litigation. Discovery should not be
allowed until the court resolves the threshold question whether the law was clearly established at
the time the allegedly unlawful action occurred.” Workman v. Jordan, 958 F.2d 332, 336 (10th
Cir. 1992) (internal citation omitted). Accordingly, in cases where qualified immunity is asserted
in a dispositive motion, the movant is ordinarily entitled to a stay of discovery until the qualified
immunity question is resolved. See Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir.
2004) (reasoning that because qualified immunity is an entitlement not to face the burdens of
litigation, “[e]ven pretrial matters such as discovery are to be avoided if possible”). Reaffirming
its long-held view that discovery should be stayed when qualified immunity is asserted, the
United States Supreme Court in Ashcroft v. Iqbal, reasoned as follows:
The basic thrust of the qualified-immunity doctrine is to free officials from the
concerns of litigation, including “avoidance of disruptive discovery” . . . There are
serious and legitimate reasons for this. If a government official is to devote time to
his or her duties, and to the formulation of sound and responsible policies, it is
counterproductive to require the substantial diversion that is attendant to
participating in litigation and making informed decisions as to how it should
proceed. Litigation, though necessary to ensure that officials comply with the law,
exacts heavy costs in terms of efficiency and expenditure of valuable time and
resources that might otherwise be directed to the proper execution of the work of
the government . . . .
556 U.S. 662, 685 (2009).
The Court sees no reason to depart from the general rule that once a defendant files a
dispositive motion asserting qualified immunity, discovery must be stayed. Although only the
supervisory defendants are asserting qualified immunity as to only two of Plaintiff’s claims,
Iqbal holds that all discovery should be stayed upon the assertion of qualified immunity, even for
those defendants not asserting the defense. Iqbal, 556 U.S. at 685.
Plaintiff opposes the stay, asserting that each summary judgment motion “is solely and
entirely about the merits of Plaintiff’s factual claims” and that “[n]ot every dispositive motion is
a ‘qualified immunity’ motion just because someone wrote those words in the title.” Doc. 57 at
1-2. Plaintiff further explains that “Defendants’ summary judgment motions are not ‘based on’
qualified immunity, because they do not ask the Court to determine that qualified immunity
protects them. Rather, their motions are based on ordinary principles of summary judgment.”
Doc. 62 at 2.
The Court disagrees. When an individual defendant raises the defense of qualified
immunity on summary judgment, the burden shifts to the plaintiff to meet a strict two-part test.
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). The plaintiff must show that (1) the
official violated a constitutional or statutory right and (2) the right was clearly established when
the alleged violation occurred. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002);
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). A court may address these prongs in
either order, Pearson, 555 U.S. at 236, but a plaintiff must satisfy both to avoid qualified
immunity, Olsen, 312 F.3d at 1304. In their motions for summary judgment, Defendants focus
on the first qualified immunity prong: whether the officials violated a constitutional right, which
in this case is whether Defendants were deliberately indifferent to the alleged constitutional
harm, considering both an objective and subjective component. See Doc. 42 at 13-16; Doc. 49 at
7-10; Doc. 50 at 8-10. That Defendants did not focus on the second prong (clearly established
law) does not undermine their assertion of qualified immunity. Plaintiff carries the burden to
show the right was clearly established at the time the alleged violation occurred and so
Defendants are not neglecting a burden they carry by not addressing this second prong. The
Court agrees with Defendants that they raised qualified immunity and are entitled to a stay of
discovery until that defense is resolved.
This stay, however, may not be absolute. The Court recognizes that “when qualified
immunity is raised as a defense, there is a narrow right to discovery limited to the issue of
qualified immunity.” Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1387 (10th Cir. 1994). Such
discovery, however, “must be tailored specifically to the immunity question.” Id. (quoting
Workman, 958 F.2d at 336). Indeed, in their motions to stay, Defendants do not propose to
“restrict or limit the right of Plaintiff to file an affidavit pursuant to Rule 56(d), seeking limited
discovery within the bounds of qualified immunity as established by case law.” Doc. 44 at 1;
Doc. 52 at 1. Plaintiff filed Rule 56(d) requests for limited discovery in response to the motions
for summary judgment as to Count II, and the Court will address those requests separately to
determine if limited discovery should be allowed specific to the question of qualified immunity.
For these reasons, the Court grants the motions to stay (Docs. 44, 52), pending resolution
of the motions for summary judgment raising the defense of qualified immunity (Docs. 42, 49,
50).4 The case management deadlines in the Court’s Scheduling Order (Doc. 33) are vacated.
Following resolution of the qualified immunity motions, the Court will set a status conference or
issue an appropriate order to reset discovery deadlines, as needed.
The stay does not extend to the specific documents defense counsel agreed to produce pursuant
to the protective order, nor to Defendant NMCD’s responses to Plaintiff’s request for production
served on February 5, 2021. As noted in the motion to stay, defense counsel agreed to produce
these specific documents and does not seek to stay their production. Doc. 44 ¶ 4.
2. Rule 56(d) Discovery
As discussed above, three individual Defendants, Vicente Fernandez, Clayton Trujillo,
and Ubaldo Hernandez, moved for summary judgment as to Count II, asserting the defense of
qualified immunity. Docs. 42, 49, 50. In response to each motion, Plaintiff submitted a
declaration under Federal Rule of Civil Procedure 56(d), requesting additional discovery. Docs.
55-1, 63-1, 62-1.
Federal Rule of Civil Procedure 56(d), formerly Rule 56(f), provides that
If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declaration
or to take discovery; or (3) issue any other appropriate order.
The non-movant has the burden to show that additional discovery is necessary. Martin v. Cty. of
Santa Fe, 626 F. App’x 736, 740 (10th Cir. 2015). A Rule 56(d) declaration must meet four
requirements. Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096
(10th Cir. 2010). First, the declaration must identify “the probable facts not available.” Id.
(citation omitted). Second, the declaration must state “why those facts cannot be presented
currently.” Id. That the movant has exclusive control over the needed information weighs in
favor of Rule 56(d) relief; however, exclusive control is just one factor and does not grant
automatic relief. Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783-84 (10th Cir. 2000).
Third, the declaration must specify “what steps have been taken to obtain these facts.” Valley
Forge Ins. Co., 616 F.3d at 1096 (citation omitted). And fourth, the declaration must explain
“how additional time will enable [the party] to obtain those facts and rebut the motion for
summary judgment.” Id. “A party may not invoke Fed. R. Civ. P. 56[(d)] by merely asserting
that discovery is incomplete or that specific facts necessary to oppose summary judgment are
unavailable. Rather, the party must demonstrate precisely how additional discovery will lead to a
genuine issue of material fact.” Ben Ezra, Weinstein, & Co., Inc., v. Am. Online Inc., 206 F.3d
980, 987 (10th Cir. 2000).
Additionally, in this case, because Defendants have now raised qualified immunity,
“there is a strong policy justification for staying discovery and for refusing requests for
additional discovery. . . .” Gomez v. Martin, 593 F. App’x 756, 740 (10th Cir. 2014). Plaintiff’s
burden under Rule 56(d) is “elevated in qualified immunity cases because officials have a right,
not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as
discovery,” but “limited discovery may sometimes be necessary before the district court can
resolve a motion for summary judgment based on qualified immunity.” Id. at 760-61. Therefore,
“[w]hen the summary judgment motion is based on qualified immunity, the non-movant’s Rule
56(d) affidavit must also demonstrate a connection between the information he would seek in
discovery and the validity of the defendant’s qualified immunity assertion.” Gutierrez v. Cobos,
841 F.3d 895, 908 (10th Cir. 2016) (internal quotations omitted). In other words, “the plaintiff
bears the burden of demonstrating how such discovery will raise a genuine fact issue as to the
defendants’ qualified immunity claim.” Martin, 626 F. App’x at 740 (internal quotation omitted);
The declarations executed by Plaintiff’s counsel state what probable facts are not
currently available to Plaintiff (facts needed to rebut Defendants’ material facts regarding
Defendants’ knowledge of Plaintiff’s allegations against Sanders and their knowledge of prior
misconduct allegations against Sanders), why those facts cannot be presented (because they are
in Defendants’ control), and what steps Plaintiff has taken to obtain these facts. However, the
Court is not satisfied that Plaintiff has shown that all the discovery she requests is needed to raise
a genuine issue of fact as to Defendants’ qualified immunity claims. That is, Plaintiff’s request
for discovery is likely broader than what she needs to dispute the validity of Defendants’
qualified immunity assertions. Accordingly, the Court will take Plaintiff’s Rule 56(d) discovery
requests under advisement and hear this matter at the discovery hearing set for May 6, 2021.
IT IS THEREFORE ORDERED as follows:
1) Defendant Fernandez’s Motion to Stay Discovery Based on Qualified Immunity
(Doc. 44) and Defendants Hernandez and Trujillo’s Second Motion to Stay Discovery
Based on Qualified Immunity (Doc. 52) are GRANTED.
2) All the case management deadlines in the Court’s Scheduling Order (Doc. 33) are
VACATED. Following resolution of the qualified immunity motions as to Count II
(Docs. 42, 49, 50), the Court will set a status conference or issue an appropriate order
to reset discovery deadlines, as needed.
3) Plaintiff’s Rule 56(d) discovery requests (Docs. 55-1, 63-1, 62-1) are TAKEN
UNDER ADVISEMENT and will be heard at the discovery hearing set for May 6,
STEVEN C. YARBROUGH
United States Magistrate Judge
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