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Rico v. Beard

United States District Court, E.D. California

August 29, 2019

JORGE ANDRADE RICO, Plaintiff,
v.
JEFFREY BEARD, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         BACKGROUND

         This 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.

         In 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.”

         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.)

         MOTION FOR STAY

         Defendants 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 stayed.

         I. Effect of Interlocutory Appeal

         The 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.

         A. Legal Standards

         Although 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.

         Such an 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).

         If the appeal is not frivolous or waived, [1] 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.

         Judge 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. at *2.

         Other 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).

         A stay 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)).

         In 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 ...


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