Westbrook v. Dallas County, Texas et al
MEMORANDUM OPINION AND ORDER: The Court GRANTS Chief Flores's Motion for Protective Order [Dkt. No. 21 ] and ORDERS that Chief Flores is excused from answering the interrogatories served on him on October 20, 2016 as well as any other discovery request that Plaintiff might direct to him, until further order of this Court. (Ordered by Magistrate Judge David L Horan on 12/28/2016) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DALLAS COUNTY, TEXAS; JESSE
FLORES, Dallas County Sheriff’s
Executive Chief, in His Individual and
Official Capacity; and DALLAS
COUNTY SHERIFF DEPARTMENT’S
CIVIL SERVICE COMMISSION,
MEMORANDUM OPINION AND ORDER1
Defendant Chief Deputy Jesse Flores (“Chief Flores”), sued in his individual
capacity, has filed a Motion for Protective Order pursuant to Federal Rule of Civil
Procedure 26(c), asking the Court to enter a protective order excusing him from
answering the interrogatories discovery served on him by Plaintiff James Westbrook
on October 20, 20161 and from any other discovery requests directed to him by Plaintiff
until further order of the Court. See Dkt. No. 21 (the “MPO”).
United States District Judge Jane J. Boyle referred the MPO to the undersigned
Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written
opinion issued by the court” because it “sets forth a reasoned explanation for [the]
court’s decision.” It has been written, however, primarily for the parties, to decide
issues presented in this case, and not for publication in an official reporter, and should
be understood accordingly.
United States magistrate judge for hearing, if necessary, and determination pursuant
to 28 U.S.C. § 636(b). See Dkt. No. 27.
Plaintiff has not filed a response, and his time to do so has passed. See N.D. TEX.
L. CIV. R. 7.1(e).
For the reasons and to the extent explained below, the Court GRANTS Chief
Flores’s Motion for Protective Order [Dkt. No. 21].
As the MPO explains, “[t]his civil rights action was filed on June 27, 2016
against [Chief Flores], in his individual and official capacity, and against Dallas
County. Plaintiff alleges a violation of his right under the First Amendment of the
United States Constitution – his free speech rights – for which he seeks to hold the
Chief and Dallas County liable under 42 U.S.C. §1983.” Dkt. No. 21 at 1.
“Chief Flores filed his original answer on July 19, 2016 (doc. 9), in which he
asserted his right to qualified immunity.” Id. at 1-2. “Chief Flores’s assertion of
qualified immunity, from suit and trial, is the basis for this” MPO. Id.
Chief Flores asserts that he has shown good cause under Rule 26(c) for his
requested protected order based on his “invocation of qualified immunity, at least so
long as that defense is pending and unresolved by this Court.” Id. at 2.
“Claims under § 1983 may be brought against persons in their individual or
official capacity, or against a governmental entity.” Goodman v. Harris Cty., 571 F.3d
388, 395 (5th Cir. 2009). In an individual-capacity suit, “the official may assert
personal immunity defenses such as qualified immunity.” Id. (internal quotation marks
omitted). “Qualified immunity protects ‘government officials performing discretionary
functions ... from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Vincent v. City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This “gives government
officials breathing room to make reasonable but mistaken judgments, and protects all
but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims,
134 S. Ct. 3, 5 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011); internal quotation marks omitted).
“[Q]ualified immunity constitutes an immunity from suit rather than a mere
defense to liability. Accordingly, [q]ualified immunity questions should be resolved at
the earliest possible stage in litigation, usually before discovery.” Randle v. Lockwood,
No. 16-50393, 2016 WL 6652702, at *2 (5th Cir. Nov. 10, 2016) (citations and internal
quotation marks omitted; emphasis removed).
“The two steps of the qualified immunity inquiry may be performed in any
order.” Griggs v. Brewer, 841 F.3d 308, 313 (5th Cir. 2016) (citing Pearson v. Callahan,
555 U.S. 223, 236 (2009)). Regardless of which prong is addressed first, under the first
prong, a court must decide “whether the plaintiff has alleged a violation of a
constitutional right.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008). And, under
the second prong, the court must determine “whether the defendant’s conduct was
objectively reasonable in light of the clearly established law at the time of the
incident.” Id. That is, even if a government official’s conduct violates a clearly
established right, the official is entitled to immunity if his conduct was objectively
reasonable. See Davis v. McKinney, 518 F.3d 304, 317 (5th Cir. 2008); see also Wood v.
Moss, 134 S. Ct. 2056, 2067 (2014) (“The dispositive inquiry, we have said, is whether
it would have been clear to a reasonable officer in the [defendants’] position that their
conduct was unlawful in the situation they confronted.” (quoting Saucier v. Katz, 533
U.S. 194, 202 (2001)) (internal quotation marks and brackets omitted from original)).
Once a defendant invokes his entitlement to qualified immunity, “the burden is
on the plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam); see Pierce v.
Smith, 117 F.3d 866, 872 (5th Cir. 1997) (“We do not require that an official
demonstrate that he did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs.” (internal quotation marks omitted)).
“[A] plaintiff seeking to overcome qualified immunity must plead specific facts
that both allow the court to draw the reasonable inference that the defendant is liable
for the harm [the plaintiff] has alleged and that defeat a qualified immunity defense
with equal specificity.” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). Therefore,
where the qualified immunity defense is raised, a court “must first determine whether
the allegations in [the] complaint are sufficient to negate [the] assertions of qualified
immunity.” Fleming v. Tunica County, 497 F. App’x 381, 388 (5th Cir. 2012) (per
curiam) (citing Backe, 691 F.3d at 648; Wicks v. Miss. State Employment Servs., 41
F.3d 991, 995 (5th Cir. 1995)). This “demands more than bald allegations and
conclusionary statements.” Wicks, 41 F.3d at 995. A plaintiff “must allege facts
specifically focusing on the conduct of [the defendant] which caused his injury.” Id.
“Even limited discovery on the issue of qualified immunity ‘must not proceed
until the district court first finds that the plaintiff's pleadings assert facts which, if
true, would overcome the defense of qualified immunity.’” Thayer v. Adams, 364 F.
App'x 883, 892 (5th Cir. 2010) (quoting Wicks, 41 F.3d at 994)). And, even if a plaintiff
satisfies this heightened pleading standard, the only discovery permitted at this stage
– after a defendant has invoked the qualified immunity affirmative defense and before
the defense has been resolved – must be narrowly tailored to uncover facts that the
court needs to rule on the defense itself. See id. at 994 (citing Lion Boulos v. Wilson,
834 F.2d 504, 506 (5th Cir. 1987)); accord Machete Prods., L.L.C. v. Page, 809 F.3d 281,
291 n.7 (5th Cir. 2015); Backe, 691 F.3d at 648 (“After the district court finds a plaintiff
has so pled, if the court remains ‘unable to rule on the immunity defense without
further clarification of the facts,’ it may issue a discovery order ‘narrowly tailored to
uncover only those facts needed to rule on the immunity claim.’” (quoting Lion Boulos,
834 F.2d at 507-08)); see also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (“[I]f
the actions [that a defendant official] claims he took are different from those the
[plaintiff] allege[s] ... then discovery may be necessary before [the official]’s motion for
summary judgment on qualified immunity grounds can be resolved.”); Watkins v.
Hawley, 4:12-cv-54-KS-MTP, 2013 WL 3357703, at *1 (S.D. Miss. July 3, 2013) (“While
qualified immunity was intended to shield a defendant from the burdens of litigation,
it does not shield defendants from discovery when there are genuine disputes of
material fact which are relevant to the application of qualified immunity.” (citing
Behrens v. Pelletier, 516 U.S. 299, 307-08 (1996))).
The discovery narrowly tailored to uncover only those facts needed to rule on the
immunity claim is only permitted if (1) a defendant’s immunity claim turns at least
partially on a factual question and (2) a court is unable to rule on the immunity
defense without further clarification of the facts. See Lion Boulos, 834 F.2d at 507-08;
see also Randle, 2016 WL 6652702, at *3 n.6; Webb v. Livingston, 618 F. App’x 201, 206
(5th Cir. 2015) (“A district court’s discovery order is neither avoidable nor overly broad,
and therefore not immediately appealable, when: (1) the defendant’s entitlement to
immunity turns at least partially on a factual question; (2) the district court is unable
to rule on the immunity defense without clarification of these facts; and (3) the
discovery order is narrowly tailored to uncover only the facts necessary to rule on the
immunity defense.”); Khansari v. City of Houston, 14 F. Supp. 3d 842, 861 (S.D. Tex.
2014) (“The Fifth Circuit[’s] ... careful procedure [allows] a district court [to] defer its
qualified immunity ruling if further factual development is necessary to ascertain the
availability of that defense.”).
As recently summarized succinctly by the United States Court of Appeals for the
Fifth Circuit, the “careful procedure” set forth in Backe, Wicks, and Lion Boulos
requires the district court to first make an initial determination that Plaintiffs’
allegations, if true, would defeat qualified immunity and then to “identify any
questions of fact it need[s] to resolve before it [is] able to determine whether the
defendants were entitled to qualified immunity.” Zapata v. Melson, 750 F.3d 481, 485
(5th Cir. 2014); see Webb v. Livingston, 618 F. App’x 201, 206 (5th Cir. 2015) (“If the
complaint alleges facts sufficient to overcome the defense of qualified immunity, and
the district court is ‘unable to rule on the immunity defense without further
clarification of the facts,’ then it may allow discovery ‘narrowly tailored to uncover only
those facts needed to rule on the immunity claim.’” (quoting Backe, 691 F.3d at 648 (in
turn quoting Lion Boulos, 834 F.2d at 507-08))); cf. Zantiz v. Seal, 602 F. App’x 154,
163 (5th Cir. 2015) (per curiam) (“conclud[ing] that the magistrate judge abused his
discretion in issuing a discovery order that did not perform either of the steps described
in Zapata”); Webb, 618 F. App’x at 206 (“When a district court complies with this
procedure, [the Fifth Circuit] lacks jurisdiction to review the interlocutory [discovery]
order. However, the court [of appeals] does have jurisdiction if the district court: (1)
fails to find that the complaint overcomes the defendant’s qualified immunity defense;
(2) refuses to rule on the qualified immunity defense; or (3) issues a discovery order
that is not narrowly tailored to uncover facts relevant only to the issue of qualified
immunity.” (citations omitted)).
Only if the court identifies any such facts may the court properly issue “a
discovery order that is ... narrowly tailored to uncover facts relevant only to the issue
of qualified immunity.” Webb, 618 F. App’x at 206; see also Hinojosa v. Livingston, 807
F.3d 657, 664 (5th Cir. 2015).
Chief Flores has invoked qualified immunity, see Dkt. No. 9 at 2-3, and “[o]ne
of the most salient benefits of qualified immunity is protection from pretrial discovery,
which is costly, time-consuming, and intrusive,” Backe, 691 F.3d at 648. A stay of
discovery “is common when a court is considering an immunity defense.” Goins v. City
of Sansom Park, 637 F. App’x 838, 839 (5th Cir. 2016).
Chief Flores has not filed a dispositive motion addressing his qualified immunity
defense, but “filing a motion to dismiss is not required before a defendant can assert
qualified immunity as a defense to a discovery order.” Zantiz, 602 F. App’x at162 n.7
(noting that “a district court need not rule on a motion to dismiss based on qualified
immunity before issuing a discovery order” (citing Wicks, 41 F.3d at 997 n.27)). Having
raised the defense in his answer, Chief Flores can properly file this motion seeking a
protective order from any discovery requests pending the Court’s resolution of his
In light of the Fifth Circuit’s “careful procedure” to authorize only limited
discovery – if any – that is narrowly tailored to uncover only those facts needed to rule
on a qualified immunity defense and only after (1) “determin[ing] that the plaintiffs’
allegations, if true, would defeat qualified immunity” and (2) identifying the questions
of fact that must be resolved before being “able to determine whether the defendants
[are] entitled to qualified immunity,” Zapata, 750 F.3d at 485, all discovery served or
to be served on Chief Flores should be stayed pending further order of the Court on his
qualified immunity defense.
For the reasons and to the extent explained above, the Court GRANTS Chief
Flores’s Motion for Protective Order [Dkt. No. 21] and ORDERS that Chief Flores is
excused from answering the interrogatories served on him on October 20, 2016 as well
as any other discovery request that Plaintiff might direct to him, until further order
of this Court.
DATED: December 28, 2016
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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