HomeMy WebLinkAbout2018CV217 - Montgomery V. Chernak, Howard & Brough - 034 - Plaintiff's Response In Opposition To Defendants' Motion To Stay Discovery And To Vacate The Scheduling Conference1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00217-REB-KLM
WILLIAM MONTGOMERY,
Plaintiff,
v.
MATTHEW CHERNAK,
MIKE HOWARD,
MATTHEW BROUGH.
Defendants.
______________________________________________________________________
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO
STAY DISCOVERY AND TO VACATE THE SCHEDULING CONFERENCE
Plaintiff, by and through undersigned counsel, hereby responds in opposition to
Defendants’ request that the Court stay discovery and vacate the scheduling conference.
In support, Plaintiff states as follows:
INTRODUCTION
This case involves straight-forward constitutional claims, seeking justice for the
unconstitutional and retaliatory arrest, detention, and prosecution of Plaintiff, after he
verbally questioned (and then moved to observe from afar) the Defendant officers
during thier encounter with a third party. Amended Compl. at ¶¶ 1-3. The Defendant
officers knew Plaintiff as an activist for homeless populations in the Ft. Collins area,
where the incident took place. Id. They viewed him as a troublemaker from the start of
the encounter. Id. Plaintiff did nothing more than to act as a peaceful protester by
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 1 of 12
2
bringing to their attention an obstruction to the use of public property, asking questions
of the officers when they approached a man within the vicinity, and observing their
conduct from afar. But the Defendant officers found Plaintiff’s questions and criticism
about their contact to be annoying. Id. at ¶¶ 34-36, 38. The Amended Complaint
plausibly alleges that the Defendant officers overreacted to Plaintiff’s verbal
expressions by unreasonably viewing him as defying their authority and obstructing
their interaction (even though there was no physical interference), and, as a result, the
officers detained/arrested Plaintiff without probable cause. Id. at ¶¶ 36-49, 71-94.
While some of the background facts relating to the history of the parcel of public
property upon which Plaintiff lawfully entered are lengthy (See id. at ¶¶ 14-32), the
type of claims at issue are not complex, nor are they novel. See id. at ¶¶ 72-75, 78-82,
85-93. The law is clearly established that police officers must possess objective,
reasonably trustworthy evidence amounting to probable cause to justify an arrest. The
law does not support detention/arrest to silence or retaliate against someone because the
officers find verbal expressions to be offensive or annoying. Thus, the application of
qualified immunity in this case is unwarranted – even simply to delay the case.
Defendants’ Motion to Stay is predicated solely on the blanket assertion that
defendants are (always) entitled to qualified immunity until the court resolves a motion
to dismiss involving the assertion of qualified immunity. However, Defendants’
assertion, and their motion, lacks substantial justification. Contrary to Defendants’
assertion, a stay of discovery is not automatic in civil rights cases in this District and
should not be treated as such. Defendants have not met their burden to show facts
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 2 of 12
3
supporting that this case is one in which qualified immunity would obviously apply
during a threshold review, or that a stay of discovery is necessary to protect Defendants
from any overly-broad or burdensome injury. To the contrary, Defendants suggestion
that qualified immunity protection, simply, must be automatically afforded, as a matter
of course, would force Plaintiff (and by extension any and all civil rights plaintiffs) to
suffer unnecessary and inequitable costs and burdens.
I. Defendants are not entitled to an automatic stay merely because
they assert the defense of qualified immunity.
Defendants’ Motion to Stay discovery does not assert any particular burdens
that the Defendant officers would suffer from by proceeding with discovery.
Defendants only assert that there are generalized burdens associated with defending a
lawsuit and that qualified immunity should shield them from any and all such burdens
upon the mere invocation of the qualified immunity defense. This blanket contention
that there is an automatic “entitlement” to a stay based upon the language of Harlow v.
Fitzgerald, 457 U.S. 800 (1982), is misleading, erroneous, and should be strongly
repudiated.
While Plaintiff acknowledges that proper deference should be afforded to the
concerns discussed in Harlow and its progeny – which have been used to protect law
enforcement officers from the burdens of discovery in some cases – the Court should be
mindful to apply the protection only where it is appropriate. The court in Harlow
established the protection of qualified immunity out of a concern about insubstantial
lawsuits that would present undue interference with an officer’s duties. Harlow, 457
U.S. at 806, 808. It is clear that the insubstantial lawsuits that Harlow intended to
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 3 of 12
4
discourage were those that were frivolous and expensive. Id. at 827. But even Harlow
expressly acknowledged that “if the law [related to the alleged violation] was clearly
established, the immunity defense ordinarily should fail…” Id. at 818. Thus, where a
lawsuit facially alleges the violation of a right that is clearly established by the current
state of prevailing law, it cannot be predictably dismissed based on a limited, threshold
review. Harlow’s cautionary language relating to the discovery protection of qualified
immunity makes clear that the immunity is meant to shield officers from the burdens of
cases that can be determined to be “insubstantial,” on their face, during a threshold
review of the legal norms governing officer conduct, not those cases requiring close
factual and/or legal scrutiny at the summary judgment stage. See Mitchell v. Forsyth,
472 U.S. 511, 526 (1985).
Thus, courts following Harlow and its progeny have concluded that qualified
immunity is not meant to shield government officials from all discovery, but only from
discovery which is overly broad or burdensome. See, e.g., Maxey by Maxey v. Fulton,
890 F.2d 279, 282 (10th Cir. 1989); Tolliver v. True, No. CIVA06CV02574WDMBNB,
2007 WL 1306459 *2 (D. Colo. 2007) (motions to stay should not be granted merely
because a dispositive motion is pending). The court in Tolliver noted that motions to
dismiss are denied more often than granted, which emphasizes that the likelihood of
success regarding a motion to dismiss is of importance to a motion to stay discovery. It
has been well established for almost thirty years that “the right to proceed in court
should not be denied except under the most extreme circumstances.” Commodity
Futures Trading Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 4 of 12
5
Cir. 1983). These considerations underscore why motions to stay are disfavored in this
District. See Wolf v. U.S., 157 F.R.D. 494, 495 (D. Kans. 1994); Chavez v. Young Am.
Ins. Co., No. 06-2419, 2007 WL 683973, at *2 (D. Colo. Mar. 2, 2007); See also Bitco
Gen. Ins. Corp. v. Genex Constr. LLC, No. 16-CV-1084-WJM-NYW, 2016 WL
8608452, at *1–2 (D. Colo. Sept. 13, 2016).
While Defendants argue that the policies behind qualified immunity will be
subverted if any pretrial proceedings or discovery are held before their motion to
dismiss is decided, Defendants argue that this is the case if any civil rights lawsuits are
permitted to proceed in the face of qualified immunity challenge – regardless of
whether the assertion of qualified immunity is made in good faith and/or regardless of
whether it is likely to resolve the case. This cannot be the law.
There are obvious costs associated with prematurely/erroneously granting the
benefit of an automatic stay to defendants who do not deserve the benefit of qualified
immunity. For the Court to accept Defendants’ generalized contention that uttering the
magic words “qualified immunity” presumptively requires the Court to stay any police
misconduct case, without any kind of examination of the merit of Defendants’ claim or
the state of the law governing the types of claims at issue, brazenly implies that every
civil rights claimant must shoulder the costs and burdens of premature/erroneous
application of immunity and the burdens of delay – even in circumstances where
qualified immunity is improperly invoked and/or unlikely to succeed. Such automatic
delay – applied uniquely to civil rights claimants – incentivizes meritless assertions of
qualified immunity, rewards complex/burdensome motions to dismiss, forces all
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 5 of 12
6
plaintiffs to disproportionately shoulder the costs/burdens associated with the
assessment, and brings new life to the old adage “justice delayed is justice denied.”
This is clearly not what the court in Harlow had in mind.
Moreover, any implied argument that the late application of qualified immunity
risks unnecessarily burdening Defendants with possibly irrelevant discovery, overlooks
the fact that premature application of qualified immunity to stay the proceedings,
conversely, will likely have deleterious effects for Plaintiff’s prosecution of the case
(particularly if the broader pool of all civil rights plaintiffs affected by “automatic” stay
is considered). In this District, the average time required for civil litigation is
approximately 30 months, and resolution of a dispositive motion can last several
months or more, resulting in “substantial delay.” See Marks v. Lynch, No. 16-cv-02106-
WYD-MEH, 2017 WL 491190, at *2 (D. Colo. Feb. 6, 2017). Unnecessary delay can
cause meaningful evidentiary loss as minds fade and witnesses become unavailable. Id.
Delay causes cases to linger on the court’s docket lifelessly; inconveniencing the court
and making the cases more difficult to manage. See Martinez v. Carricato, No. 16-cv-
0098-WJM-KLM, 2016 WL 8608455, at *2 (D. Colo. April 8, 2016). Delays sap the
momentum of a prosecution and cause individual plaintiffs to lose hope that they will
be meaningfully heard. The public interest is supported only by a system in which civil
rights claims may be allowed to proceed in a timely manner so that future plaintiffs are
not deterred by the number of years it takes to seek justice. See Chavez v. Young
America Ins. Co., No. 06-2419, 2007 WL 683973 *2 (D. Colo. 2007).
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 6 of 12
7
The 2015 Amendments to the Federal Rules of Civil Procedure emphasize the
importance of Rule 1’s requirement of just and speedy determination in every case –
especially those cases that highlight important public interest matters – and discourages
the over-use, misuse, and abuse of procedural tools that result in delay. Thus, the Court
must be skeptical of Defendants’ claim of an automatic entitlement to stay, particularly
where it is undeserved.
II. Defendants’ shoulder the burden of proving a stay of discovery is
appropriate, and Defendants have failed to meet that burden in this
case.
While this Court unquestionably possesses the authority to issue a stay of
discovery, the procedural mechanism by which a defendant properly seeks such
protection is Rule 26(c). See Fed.R.Civ.P. 26 (a court may, for good cause shown, issue
an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including forbidding the disclosure or discovery); see also
Paulsen v. Anderson, No. 15-cv-00800-PAB-KMT, 2015 WL 5818244 at *1 (D. Colo.
Oct. 6, 2015); Martinez v. Carricato, No. 16-cv-0098-WJM-KLM, 2016 WL 8608455,
at *2 (D. Colo. April 8, 2016). Pursuant to Rule 26(c), the party who seeks a stay of
discovery has the burden of demonstrating good cause and "cannot sustain that burden
by offering simply conclusory statements." Id.; Bitco Gen. Ins. Corp. v. Genex Constr.
LLC, No. 16-CV-1084-WJM-NYW, 2016 WL 8608452, at *1 (D. Colo. Sept. 13,
2016). The court requires “particular and specific demonstration of fact” to support its
request. Id. (citing Christou v. Beatport, LLC, No. 10-cv-02912-CMA-KMT, 2011 WL
650377 at *1 (D. Colo. Feb. 10, 2011)). The movant must show specific facts
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 7 of 12
8
demonstrating that the challenged discovery will result in a clearly defined and serious
injury to the party seeking protection. Exum v. United States Olympic Comm., 209
F.R.D. 201, 206 (D. Colo. 2002); see also Tolbert-Smith v. Bodman, 253 F.R.D. 2, 4
(D.D.C.2008). The defendant seeking the stay should bear the burden of demonstrating
“a likelihood that the case will be finally concluded as a result of the ruling…” or that
“discovery of the broad complaint would be wasteful and burdensome.” Collins v.
Johnson Cty., Kansas, No. CIV. A. 01-2227-JWL, 2001 WL 1155295, at *1 (D. Kans.
2001).
Defendants’ Motion to Stay does not even attempt to meet this burden.
Defendants spend the bulk of their motion quoting the general public policy interests
associated with qualified immunity before conclusorily asserting that those public
policy interests will be subverted if discovery is commenced. See Def. Mot. at 4.
Defendants attempt to place the burden on Plaintiff by asserting that there is “no basis
not to [stay].” Def. Mot. at 5. But that argument erroneously attempts to flip the burden
of production back onto Plaintiff and does little to meet it. Defendants provide no
factual basis as to why this case is one in which qualified immunity would obviously
facially apply or why these Defendants are uniquely situated to suffer any particularly
onerous burdens without a stay of discovery. Defendants have made no showing that
the claims at issue are, in some way, novel, such that the norms and/or contours of the
rights and violations at issue would have been unknown to the Defendant officers. To
the contrary, the law is clearly established in the areas of unlawful arrest/prosecution
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 8 of 12
9
and First-Amendment rights.1 See, e.g., Cortez v. McCauley, 478 F.3d 1108, 1115-16
(10th Cir. 2007); Stearns v. Clarkson, 615 F.3d 1278, 1282-83 (10th Cir. 2010); City of
Houston v. Hill, 482 U.S. 451, 462-63 (1987); Wilkins v. DeReyes, 528 F.3d 790, 802
(10th Cir. 2008); Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004); Taylor v.
Meachum, 82 F.3d 1556, 1564 (10th Cir. 1996); see also, generally, Doc. 24.
Defendants have not cited to any overly burdensome discovery requests that must be
avoided at this specific juncture. There are none pending. Defendants have not made a
showing of any unique factual matters that make a routine Scheduling Conference and
26(a)(1) Disclosure (typically handled by counsel with minimal involvement of the
parties) to be overly burdensome. Thus, the idea that Defendants will suffer onerously
burdensome demands on their time merely by permitting the case to proceed past a
Scheduling Conference is a dramatic exaggeration.
Most importantly, an automatic delay is not appropriate in this case, where
Defendants have attempted to criminalize Plaintiff’s protected, First Amendment,
expression, and Defendants seek a delay of the prosecution of the case merely because
Plaintiff is seeking a remedy for that misconduct. A cursory review of the briefing
regarding Defendants’ Motion to Dismiss demonstrates that Defendants have dug in
their heels to unreasonably interpret verbal expression as criminal conduct. See Doc. 24,
28. Granting the benefit of even a temporary stay of discovery to Defendants on this
basis improperly gives Defendants the benefit of qualified immunity (even if only
1 Although Defendants assert that the law is not clearly established when it comes to First Amendment
retaliation, Defendants argue this is only so if there exists probable cause – a nuanced legal issue with
limited applicability where Plaintiff argues there is no probable cause.
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 9 of 12
10
temporarily) where it should not be provided. Plaintiff did nothing to deserve the
original detention, arrest, confinement, or criminal prosecution, other than speak to and
observe the officers. Plaintiff should not be forced to endure additional delay merely
because Defendants improperly claim qualified immunity protection should be afforded.
Finally, Defendants make no factual showing that an indefinite stay of discovery
would be warranted in this case, as opposed to a stay for a more finite period of time
(such as two-to-three months). If the Court finds that Harlow applies and that the
Defendants should be provided protection from discovery, any such stay should be
limited to a period of time that ensures Plaintiff is not too severely prejudiced. As
indicated in the complaint, the incident occurred almost 2.5 years ago, and Defendants
contributed to much of the delay in the filing of this lawsuit by forcing the prosecution
to drag on for almost two years. Additional delay could cause serious concerns
regarding the efficacy of evidence that is permitted to grow or remain stale and/or
which may go missing as more time passes and parties/witnesses move, quit jobs, pass
on and memories, naturally, fade.
A stay of discovery is not warranted under these circumstances.
WHEREFORE, for all the foregoing reasons, Plaintiff respectfully requests that
this Court DENY Defendants’ motion to stay discovery.
COUNSEL FOR PLAINTIFF
s/ __Raymond K. Bryant________
Raymond K. Bryant
Civil Rights Litigation Group, PLLC
1543 Champa St. #400
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 10 of 12
11
Denver, CO 80202
P: 720-515-6165
F: 720-465-1975
Raymond@rightslitigation.com
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 11 of 12
12
CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of July, 2018 I electronically filed the
foregoing PLAINITFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’
MOTION TO STAY DISCOVERY AND TO VACATE THE SCHEDULING
CONFERENCE with the Clerk of the Court using the CM/ECF systems which is
expected to send notification of such filing to the following e-mail addresses:
Thomas J. Lyons, Esq.
Christina S. Gunn, Esq.
Hall & Evans, L.L.C.
1001 17th
Street, Suite 300,
Denver, CO 80202
303-628-3300 /
Fax: 303-628-3368
lyonst@hallevans.com /
s/ __Raymond K. Bryant________
Case 1:18-cv-00217-REB-KLM Document 34 Filed 07/17/18 USDC Colorado Page 12 of 12