United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding through counsel with a civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
alleges use of the Guard One security check system violated
his Eighth Amendment rights. On June 20, 2019, defendants
moved for a stay of these proceedings pending the Ninth
Circuit's resolution of defendants' interlocutory
appeal. After considering the parties' briefs, this court
finds it unnecessary to hear argument on defendants'
motion. For the reasons set forth below, this court will
recommend defendants' motion be granted.
case is proceeding on plaintiff's second amended
complaint filed on May 3, 2017. (ECF No. 38.) He alleges use
of the Guard One system in the Security Housing Unit at
Pelican Bay State Prison caused him severe sleep deprivation
in violation of his Eighth Amendment rights. The Guard One
system was implemented pursuant to an order issued by Judge
Mueller in Coleman v. Brown, No. 2:90-cv-0520 KJM DB
(E.D. Cal.). In 2018, Judge Mueller related the present case,
and several other cases regarding use of the Guard One system
in California prisons, to Coleman.
February 2018, defendants moved to dismiss this action.
Defendants argued, among other things, that because plaintiff
is no longer incarcerated in the Security Housing Unit his
claims for injunctive and declaratory relief are moot.
Defendants further argued that they are protected from
liability for damages by qualified immunity. In March 2019,
Judge Mueller dismissed plaintiff's claims for injunctive
and declaratory relief as moot, dismissed the high level
supervisory defendants based on qualified immunity, and
denied the motion to dismiss the remaining defendants,
identified as the “appeals review defendants” and
the “floor officer defendants.”
appealed Judge Mueller's ruling. (ECF No. 103.) That
appeal remains pending before the Ninth Circuit.
(See ECF Nos. 104, 107.) On June 20, 2019,
defendants made the present motion to stay these proceedings
pending the Ninth Circuit's resolution of their appeal.
(ECF No. 112.) Plaintiff opposes the stay. (ECF No. 114.)
Defendants filed a reply. (ECF No. 115.)
argue the court should stay all proceedings in this case to
avoid the potentially unnecessary expense involved in
discovery and other pretrial matters. In his opposition,
plaintiff argues he will be prejudiced if discovery is
Effect of Interlocutory Appeal
court first considers defendants' argument that a stay of
these proceedings is essentially automatic because the
district court is deprived of jurisdiction over the subjects
of the interlocutory appeal.
circuit courts generally lack jurisdiction to hear an
interlocutory appeal from an order denying summary judgment
or a motion to dismiss, a narrow exception exists under the
collateral order doctrine for appeals of orders denying
qualified immunity. Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). This exception exists because qualified
immunity is an immunity from suit rather than a mere defense
to liability, and that immunity “is effectively lost if
a case is erroneously permitted to go to trial.”
Id. at 526.
appeal “normally divests the district court of
jurisdiction to proceed with trial.” Padgett v.
Wright, 587 F.3d 983, 985 (9th Cir. 2009); Chuman v.
Wright, 960 F.2d 104, 105 (9th Cir. 1992). Nonetheless,
“[r]ecognizing the importance of avoiding uncertainty
and waste, but concerned that the appeals process might be
abused to run up an adversary's costs or to delay trial,
[the Ninth Circuit] ha[s] authorized the district court to go
forward in appropriate cases by certifying that an appeal is
frivolous or waived.” Rodriguez v. Cty. of Los
Angeles, 891 F.3d 776, 790-91 (9th Cir. 2018) (citations
omitted). “[A] frivolous qualified immunity claim is
one that is unfounded, ‘so baseless that it does not
invoke appellate jurisdiction,' and [ ] a forfeited
qualified immunity claim is one that is untimely or
dilatory.” Marks v. Clarke, 102 F.3d 1012,
1017 n.8 (9th Cir. 1996) (quoting Apostol v.
Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989)). For
example, an appeal would be frivolous where “the
disposition is so plainly correct that nothing can be said on
the other side.” Dagdagan v. City of Vallejo,
682 F.Supp.2d 1100, 1116 (E.D. Cal. 2010) (citations
omitted), aff'd sub nom., Dagdagan v.
Wentz, 428 Fed.Appx. 683 (9th Cir. 2011).
appeal is not frivolous or waived,  the district court still
“retains jurisdiction to address aspects of the case
that are not the subject of the appeal.” United
States v. Pitner, 307 F.3d 1178, 1183 n.5 (9th Cir.
2002) (citing Plotkin v. Pac. Tel. & Tel. Co.,
688 F.2d 1291, 1293 (9th Cir. 1982); see also Alice L. v.
Dusek, 492 F.3d 563, 564-65 (5th Cir. 2007) (district
court is divested of jurisdiction of only “those
aspects of the case on appeal”). What constitutes the
“subject of the appeal” requires some
consideration. Most courts have construed the “subject
of the appeal” to include the claims subject to the
immunity defense. The district court thus loses jurisdiction
of not only the immunity defense but also of those underlying
claims. A stay of pretrial proceedings on those claims would
therefore be, essentially, automatic.
England made that determination in Cabral v. County of
Glenn, No. 2:08-cv-0029 MCE DAD, 2009 WL 1911692 (E.D.
Cal. July 1, 2009). There, defendant Dahl sought dismissal of
plaintiff's excessive force claim against him on the
grounds of qualified immunity. The court determined Dahl was
not entitled to qualified immunity and Dahl appealed. Dahl
and the other defendants then sought a stay of the
proceedings in the district court. Judge England noted that
an “interlocutory appeal on the issue of qualified
immunity ... does not deprive this court of jurisdiction to
address other, unrelated, matters still pending before
it.” 2009 WL 1911692, at *1 (quoting Beecham v.
City of West Sacramento, 2008 WL 4821655, *1 (E.D. Cal.
2008)). He then held that “[b]ecause the excessive
force claim against Officer Dahl is clearly related to his
appeal, this action should be stayed as to that claim against
Officer Dahl.” Discovery was permitted on claims that
would not be directly affected by the appeal. In conclusion,
the court ruled that “no witness may be deposed as to
any issues that relate solely to either the excessive force
cause of action brought against Officer Dahl and/or Officer
Dahl's claim of qualified immunity.” Id.
courts have similarly held that the interlocutory appeal on
the issue of immunity requires the district court to stay
pretrial proceedings on claims subject to that immunity.
See, e.g., J.P. by and through Villanueva v.
Cty. of Alameda, No. 17-cv-5679-YGR, 2018 WL 3845890, at
*2 (N.D. Cal. Aug. 13, 2018) (pending resolution of appeal,
defendants are entitled to a stay of all pretrial proceedings
on claims for which immunity defense applicable).
of pretrial proceedings on the underlying claims is necessary
to give effect to the purposes of the qualified immunity
doctrine. As noted by the Supreme Court, the purpose of
qualified immunity is “not merely to avoid
‘standing trial,' but also to avoid the burdens of
‘such pretrial matters as discovery . . ., as
[i]nquiries of this kind can be peculiarly disruptive of
effective government.'” Behrens v.
Pelletier, 516 U.S. 299, 308 (1996) (quoting
Mitchell, 472 U.S. at 526) (some internal quotations
marks omitted). Courts in this and other circuits have
recognized that pretrial proceedings on the merits of a claim
should be delayed until the qualified immunity issue is
resolved. See Dahlia v. Stehr, 491 Fed.Appx. 799,
801 (9th Cir. 2012) (“[A] denial of summary judgment
without prejudice is sufficiently final to support
jurisdiction over an interlocutory appeal . . . because the
purpose of qualified immunity is ‘not merely to avoid
standing trial, but also to avoid the burdens of such
pretrial matters as discovery.'” (quoting
Behrens, 516 U.S. at 308)); Dunn v. Castro,
621 F.3d 1196, 1199 (9th Cir. 2010) (recognizing the
importance of resolving qualified immunity issue early in the
case because such immunity permits government officials to
avoid the burdens of pretrial matters such as discovery);
Ganwich v. Knapp, 319 F.3d 1115, 1119 (9th Cir.
2003) (same); Holloway v.City of Pasadena, No.
2:15-cv-3867-CAS(JCx), 2016 WL 11522304, at *2 (C.D. Cal.
Mar. 14, 2016) (same); Congdon v. Lenke, No. CIV
08-1065RJB, 2010 WL 489677, at *8 (E.D. Cal. Feb. 5, 2010)
(same); Wolfenbarger v. Black, No. CIV S-03-2417 MCE
EFB P, 2008 WL 590477, at *2 (E.D. Cal. Feb. 29, 2008)
(district court should resolve immunity issue before allowing
discovery), rep. and reco. adopted, 2008 WL 838721
(E.D. Cal. Mar. 28, 2008); see also District of Columbia
v. Trump, 930 F.3d 209 (4th Cir. 2019) (an entitlement
to immunity is an entitlement “‘not to stand
trial or face the other burdens of litigation'”
(quoting Mitchell, 472 U.S. at 526)); Oliver v.
Roquet, 858 F.3d 180, 188 (3rd Cir. 2017)
(“‘[A] defendant pleading qualified immunity is
entitled to dismissal before the commencement of
discovery.'” (quoting Mitchell, 472 U.S.
at 526)); Marksmeier v. Davis, 622 F.3d 896, 903
(8th Cir. 2010) (same); Barron v. Livingston, 42
Fed.Appx. 793, 794 (6th Cir. 2002) (“Qualified immunity
provides government officials the right to avoid the
pre-trial burden of discovery.” (citing
Behrens, 516 U.S. at 314)).
fact, courts have also held that an order permitting
discovery on the merits prior to a ruling on an immunity
defense is itself grounds for an interlocutory appeal.
See Oliver, 858 F.3d at 188 (subjecting a government
official to the burdens of pretrial matters such as discovery
is an ...