Waller, et al. v. City of Fort Worth Texas, et al.
Filing
112
Memorandum Opinion and Order granting 49 MOTION Motion & Brief to Stay Discovery and 61] MOTION to Stay Discovery (See order for specifics) (Ordered by Magistrate Judge David L Horan on 10/2/2015) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KATHY WALLER, ET AL.,
Plaintiffs,
V.
CITY OF FORT WORTH, ET AL.,
Defendants.
§
§
§
§
§
§
§
§
§
No. 4:15-cv-670-Y
MEMORANDUM OPINION AND ORDER GRANTING
MOTIONS TO STAY DISCOVERY
Various individual defendants filed two motions to stay discovery, see Dkt. Nos.
49 & 61, while this case was pending in the Dallas Division of the Northern District
of Texas. United States District Judge Jane J. Boyle referred the motions to the
undersigned United States magistrate judge for hearing, if necessary, and
recommendation or determination pursuant to 28 U.S.C. § 636(b). See Dkt. No. 69. This
case was then transferred to the Fort Worth Division of the Northern District of Texas,
and that referral was vacated. See Dkt. No. 103. On September 22, 2015, Senior United
States District Judge Terry R. Means re-referred the motions to the undersigned for
determination pursuant to 28 U.S.C. § 636(b)(1)(A). See Dkt. No. 106.
After considering the motions, the response [Dkt. No. 87], the reply brief [Dkt.
No. 100], and the parties’ oral arguments presented before the undersigned on
September 30, 2015, see Dkt. Nos. 107 & 111, and for the reasons and to the extent
explained below, the motions [Dkt. Nos. 49 & 61] are GRANTED.
-1-
Background
The general background of this civil rights action, as alleged by Plaintiffs, was
set out in Judge Boyle’s memorandum opinion and order granting the motion to
transfer venue:
This is an excessive force case stemming from a May 28, 2013 incident
where a Fort Worth Police officer shot and killed a private citizen while
he stood inside his garage. Specifically, according to Plaintiffs, around
1:00 a.m. that day, an ADT alarm operator phoned the Fort Worth Police
Department’s 9-1-1 dispatcher to report a burglary at 409 Havenwood
Lane North, Fort Worth, TX. The dispatcher then sent two of the
Defendants – Fort Worth Police officers Richard Hoeppner and Benjamin
Hanlon – to the scene. When the men arrived, they walked down the
driveway of 404 – rather than 409 – Havenwood Lane North. A few
minutes later, the owner of the home, Jerry Waller, lay dead on the floor
of his garage, shot to death by Hoeppner.
Waller’s widow, Kathy, and children, Angie and Chris, then sued the City
of Fort Worth, Hoeppner, Hanlon, and five other current and former Fort
Worth Police officers for wrongful death under 42 U.S.C. § 1983....
Dkt. No. 102 at 1-2 (citations omitted).
As provided in the first amended complaint [Dkt. No. 41] and made clear by
Plaintiffs’ counsel during the September 30, 2015 oral argument, Plaintiffs and
Intervenors Terry Springer and Gayla Kimbrough – both Jerry Waller’s children from
a prior marriage – are now pursuing claims against the City and six individual
defendants – Hoeppner, Hanlon, Merle Green, Dana Baggott, B.S. Hardin, and A.
Chambers, all current or former Fort Worth police officers (collectively the “Officer
Defendants”). Former Fort Worth Chief of Police Jeffrey Halstead is no longer a
defendant.
All Officer Defendants have asserted the affirmative defense of qualified
-2-
immunity. Defendants Green and Baggott have moved to dismiss, based in part on
qualified immunity, or, alternatively, have requested a Rule 7(a) reply, see Dkt. No. 46,
and have also asserted the affirmative defense in their answers, see Dkt. Nos. 47 & 48.
Defendant Hanlon has moved to dismiss based in part on qualified immunity. See Dkt.
No. 52. Defendant Hoeppner has asserted the affirmative defense in his answer. See
Dkt. No. 55. And Defendants Hardin and Chambers have moved to dismiss, based in
part on qualified immunity, see Dkt. No. 60, and have also asserted the affirmative
defense in their answers, see Dkt. Nos. 108 & 109.
Legal Standards
“The doctrine of qualified immunity shields ‘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.’” Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014)
(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, 131 S.Ct. 2074, 2085
(2011)) (internal quotation marks omitted).
A court may address the two prongs of the qualified immunity analysis “in any
order.” Luna, 773 F.3d at 718 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
Regardless of which prong is addressed first, a court must decide “whether the facts,
taken in the light most favorable to the plaintiff, show the officer’s conduct violated a
-3-
federal constitutional or statutory right.” Luna, 773 F.3d at 718 (citing Tolan v. Cotton,
134 S. Ct. 1861, 1865 (2014); Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir.
2004)). Put differently, under this prong, a court simply 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 a court also must decide “‘whether the defendant’s actions violated clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Luna, 773 F.3d at 718 (quoting Flores, 381 F.3d at 395). This prong of the
analysis requires a court to determine “whether the defendant’s conduct was
objectively reasonable in light of the clearly established law at the time of the
incident.” Charles, 522 F.3d at 511. 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
-4-
demonstrate that he did not violate clearly established federal rights; our precedent
places that burden upon plaintiffs.” (internal quotation marks omitted)); see also
Brooks v. City of West Point, 18 F. Supp. 3d 790, 794 (N.D. Miss. 2014) (“The usual
summary judgment burden of proof is altered somewhat in the case of a qualified
immunity defense.” (citing Gates v. Tex. Dep’t of Prot. & Regulatory Servs., 537 F.3d
404, 419 (5th Cir. 2008))).
“[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.
Generally, 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
Wicks, 41 F.3d at 994 (citing Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987));
-5-
accord 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 50708)); 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-KSMTP, 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 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
-6-
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, ___ F. App’x ____, 2015 WL 4385287, at *2 (5th
Cir. July 17, 2015) (per curiam) (“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.
Zanitz 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, 2015 WL 4385287, at *3
(“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
-7-
immunity.” Webb, 2015 WL 4385287, at *3.
Analysis
In opposing the motions to stay, Plaintiffs and Intervenors recognize that, as to
those defendants who have a right to assert qualified immunity, “the district court has
a duty to follow precedent of the Supreme Court and the Courts of Appeal, but [state
that they] make this objection in the hope that these courts will reassess and reject the
immunity from suit rule of Harlow v. Fitzgerald.” Dkt. No. 87 at 4. As all of the parties
acknowledge, the City of Fort Worth, as a municipality, has no immunity from liability
under Section 1983. See Owen v. City of Independence, Mo., 445 U.S. 622, 638 (1980).
This Court, in the posture of determining the two motions to stay, is certainly
not in a position to question controlling precedent or the wisdom of the qualified
immunity doctrine. Indeed, as to the Officer Defendants, as this Court has done
numerous times before, see, e.g., Hatcher v. Bement, No. 3:14-cv-432-M-BN, 2015 WL
1511106, at *8-*10 (N.D. Tex. Apr. 3, 2015), and as the Court must do here, because
the Officer Defendants have invoked the qualified immunity defense, the Court will
follow 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 the immunity
claims 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 (citing Backe, 691 F.3d at 647-49; Wicks,
41 F.3d at 994; Lion Boulos, 834 F.2d at 506-08).
-8-
Relatedly, the opposition to the motions to stay relies on Defendant Hoeppner’s
not filing a separate motion on qualified immunity but merely raising it as an
affirmative defense in his answer. See Dkt. No. 87 at 5 (“Kathy Waller should be
allowed to proceed with discovery against Defendant Hoeppner since his motion to
dismiss was not a motion for qualified immunity. His motion complains only about
state law claims that are no longer pled in Plaintiffs’ First Amended Original
Complaint and therefore, discovery should be able to proceed against Defendant
Hoeppner and the City of Fort Worth.”). 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 at 162 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)).
The Court must also address Plaintiffs and Intervenors’ argument that Dennis
v. Sparks, 449 U.S. 24 (1980) – in which the Supreme Court held that an otherwise
private person may act “under color of state law” when he engages in a conspiracy with
state officials (there, a judge) to deprive a plaintiff of a federal right – supports their
assertion that discovery in this case should not be stayed in light of the Officer
Defendants’ qualified immunity claims.
In Dennis, the judge’s co-conspirators attempted to use judicial immunity to urge
that they too not be subject to a Section 1983 damages actions, arguing that
if a case such as this is to go to trial, the charge of conspiracy and judicial
corruption will necessarily be aired and decided, the consequence being
that the judge, though not a party and immune from liability, will be
-9-
heavily involved, very likely as a witness forced to testify about and
defend his judicial conduct....
[And the Supreme Court conceded that, o]f course, testifying takes time
and energy that otherwise might be devoted to judicial duties; and, if
cases such as this survive initial challenge and go to trial, the judge’s
integrity and that of the judicial process may be at stake in such cases.
But judicial immunity was not designed to insulate the judiciary from all
aspects of public accountability. Judges are immune from § 1983 damages
actions, but they are subject to criminal prosecutions as are other
citizens.
Id. at 30-31.
After considering the “not insubstantial” concerns, “either for the judge or for the
public,” the Supreme Court concluded “that the potential harm to the public from
denying immunity to private co-conspirators is outweighed by the benefits of providing
a remedy against those private persons who participate in subverting the judicial
process and in so doing inflict injury on other persons.” Id. at 31-32.
The holding of Dennis, therefore, has nothing to do with the phasing of discovery
in a case in which various individual defendants have invoked the affirmative defense
of qualified immunity. First, unlike the judge in Dennis, no party to this action has yet
established a right to immunity. No party, moreover, is advocating that the immunity
of another party protects him from liability because the immune party may have to
participate in the litigation at some point in the future. Defendants here merely urge
the Court to first determine whether any Officer Defendant is entitled to qualified
immunity before burdening that defendant with broad or far-reaching discovery.
Therefore, the only issue to be resolved now – before the Court undertakes the
analysis required by Zapata and the governing decisions it followed – is whether
-10-
Plaintiffs and Intervenors are entitled to discovery related to the claims against the
City of Fort Worth. See Dkt. No. 87 at 5-6 (“Plaintiffs/Intervenors move the Court to
permit written discovery with the City of Fort Worth ... since the City has no qualified
immunity.... The Plaintiffs/Intervenors further ask the Court that they be permitted
to take full depositions of all city personnel, except for Defendants Hanlon, Hardin,
Green, Chambers, and Baggott, until such time as the Court has ruled on their motions
for qualified immunity and that the Court permit the depositions of other personnel,
including crime scene personnel and former Chief Halstead, so that Kathy Waller and
the other Plaintiffs/Intervenors can have their day in court.”).
In Ashcroft v. Iqbal, the Supreme Court observed that
[t]he 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....
It is no answer to these concerns to say that discovery for [defendants
asserting their right to qualified immunity] can be deferred while pretrial
proceedings continue for other defendants. It is quite likely that, when
discovery as to the other parties proceeds, it would prove necessary for
petitioners and their counsel to participate in the process to ensure the
case does not develop in a misleading or slanted way that causes
prejudice to their position. Even if [defendants asserting their right to
qualified immunity] are not yet themselves subject to discovery orders,
then, they would not be free from the burdens of discovery.
556 U.S. 662, 685-86 (2009) (internal citations and quotation marks omitted).
-11-
At oral argument, Plaintiffs’ counsel vigorously contested applying this language
broadly to stay discovery as to the City at this time. And the Court was able to locate
one district court decision from this circuit in which the court declined to grant a
defendant
the global stay of discovery he request[ed] because Harlow and Iqbal do
not mandate such a broad stay, district courts following Iqbal have not
uniformly interpreted that decision as imposing such a requirement, the
doctrine of qualified immunity only seeks to shield parties from the
disruptive aspects of discovery, and countervailing interests in keeping
[that] case progressing towards resolution [were] considerable.
Saenz v. City of El Paso, No. EP-14-cv-244-PRM, 2015 WL 4590309, at *2 (W.D. Tex.
Jan. 26, 2015).
The Court clearly is interested in keeping this case progressing towards
resolution. Addressing the sufficiency of the factual allegations in Plaintiffs and
Intervenors’ operative complaint in light of the Officer Defendants’ qualified immunity
defenses is part of that progression. And failing to make the findings required by
Zapata or issuing an overly broad discovery order at this time would only serve to
invite a – likely successful – interlocutory appeal of that discovery order, see Zanitz v.
Seal, 602 F. App’x 154, which would further (and needlessly) delay any future day in
court for the Plaintiffs and Intervenors.
Therefore, because the Court finds that Plaintiffs and Intervenors’ theories of
liability as against the City are factually derivative of those as against the Officer
Defendants, the Court must stay discovery as to the City until the Court addresses the
Officer Defendants’ qualified immunity claims under the framework of Zapata.
-12-
On point in this regard is Doe v. El Paso County Hospital District, No.
EP-13-cv-00406-DCG, 2015 WL 3902303 (W.D. Tex. June 23, 2015), in which the
claims against the United States were – like the claims against the City of Fort Worth
here are – “predicated largely, if not exclusively, on the alleged actions of the individual
Defendants.” Id. at *9. In that case, United States District Judge David C.
Guaderrama held that,
[i]f “protect[ing] the substance of the qualified immunity defense ... so
that officials are not subjected to unnecessary and burdensome discovery
or trial proceedings,” means anything, it must mean that a court should,
whenever possible, resolve the qualified immunity issue early and avoid
subjecting individual government officers to discovery that is unnecessary
to resolving the qualified immunity question.
Id. (quoting Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998)).
Judge Guaderrama, in staying “all discovery against the United States until
such time as the Court rules on the individual Defendants’ qualified immunity
defense[s],” id. (footnote omitted), further noted the court’s “‘broad discretion to tailor
discovery narrowly and to dictate the sequence of discovery’” under Federal Rule of
Civil Procedure 26, id. (quoting Crawford-El, 523 U.S. at 598).
Similarly, in considering a request to stay discovery pending an interlocutory
appeal of the denial of qualified immunity on two claims (Counts Three and Four),
another judge of this Court allowed “[d]iscovery [to] proceed on those claims that [were]
legally distinct and for which a party may not assert the defense of qualified
immunity.” Harris v. City of Balch Springs, 33 F. Supp. 3d 730, 733 (N.D. Tex. 2014)
(emphasis added). While, in Harris, United States District Judge Sam A. Lindsay
-13-
refused to “read Iqbal as requiring a global stay of all pretrial proceedings, including
discovery, pending the [resolution] of a defendant’s [qualified immunity claim,]” id. at
732, there,
the court [had] already ruled that the allegations of Plaintiff’s Complaint,
if true, were sufficient to state claims upon which relief could be granted
as to Counts Three and Four and that the allegations were sufficient to
defeat [Defendant] Morris’s entitlement to qualified immunity.
Accordingly, the concerns raised and addressed by the Court in Iqbal
[were] simply not present in or applicable to [that] case.
Id. Here, of course, the Court has not reached that determination.
More importantly, in Harris, the claims on which Judge Lindsay allowed
discovery to proceed while the individual defendant appealed the Court’s denial of his
qualified immunity claim were “only against the City, not Morris.” Id. at 733 (citing
separate and distinct claims against the City for breach of contract, violation of due
process under Section 1983,Title VII race and retaliation discrimination, and race
discrimination under Texas law). But, here, Plaintiffs and Intervenors’ claims are that
all defendants violated their rights under the United States and Texas Constitutions,
and, here, there are no claims that are factually and legally distinct to the City of Fort
Worth. As such the Court cannot find that proceeding with discovery as to any claims
against the City would not be “‘disruptive’ and will not impede or circumvent any right
or entitlement to qualified immunity” asserted by the Officer Defendants. Id.
Conclusion
The Court GRANTS the motions to stay discovery [Dkt. Nos. 49 & 61] for the
reasons and to the extent explained above.
-14-
SO ORDERED.
DATED: October 2, 2015
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
-15-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?