UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2054
HECTOR GUZMAN-RIVERA, ET AL.,
Plaintiffs - Appellees,
v.
HECTOR RIVERA-CRUZ, ET AL.,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Lynch, Circuit Judges.
Esther Castro-Schmidt, with whom Jos R. Gaztambide, Luis A.
Plaza-Mariota, Elisa Bobonis-Lang and Gaztambide & Plaza were on
brief for appellants.
Victoria A. Ferrer for appellees.
October 28, 1996
TORRUELLA, Chief Judge. The parties come before us for
TORRUELLA, Chief Judge.
the third time in as many years. This time, defendants-
appellants appeal the district court's denial of their motion for
summary judgment based on qualified immunity. The district court
found the qualified immunity defense to have been waived by
defendants' failure to raise the issue earlier in the
proceedings. We affirm the district court's denial of
defendants-appellants summary judgment motion. We agree with the
finding of waiver to the extent that the district court found the
qualified immunity defense waived for the pre-trial stage, and we
reverse to the extent that it found the defense waived for the
purposes of trial.
I. BACKGROUND
I. BACKGROUND
On June 27, 1989, plaintiff-appellee H ctor Guzm n-
Rivera was convicted of murder and sentenced to 119 years
imprisonment. Guzm n's father, H ctor Guzm n-Fern ndez, began an
independent investigation into the murder for which his son had
been convicted and eventually uncovered proof of Guzm n's
innocence. Guzm n was released on June 15, 1990. Guzm n and
members of his family subsequently filed suit against the
Secretary of Justice of Puerto Rico and two other Justice
Department officials under 42 U.S.C. 1983. The suit alleged
that the defendants had failed to reinvestigate the facts of
Guzm n's case with adequate speed and to move for his release
even after his innocence had been established.
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In Guzm n-Rivera v. Rivera-Cruz, 29 F.3d 3 (1st Cir.
1994) (Guzm n I) we vacated the district court's grant of summary
judgment for defendants on statute of limitations grounds and
remanded. In Guzm n-Rivera v. Rivera-Cruz, 55 F.3d 26 (1st Cir.
1995) (Guzm n II), we reviewed the district court's denial of
defendants' motion for summary judgment on absolute immunity
grounds. We found that the defendants are not "entitled to
absolute immunity for any delays or inadequacies in their conduct
of the investigation," but that "they are absolutely immune for
their post-investigation failure to go into court to seek
Guzm n's release." Id. at 28.
The case is now before us again. For the third time,
we are presented with an appeal from the district court's ruling
on a summary judgment motion. This time, the appeal is from a
denial of summary judgment on qualified immunity grounds. The
summary judgment motion was denied by the district court on the
grounds of waiver; "[d]efendants have had ample opportunity to
raise this defense during the district court's prolonged
proceedings as well as through two appeals . . . . Thus, we find
that defendants' waived the qualified immunity defense." Order
of the District Court, August 4, 1995.
II. STANDARD OF REVIEW
II. STANDARD OF REVIEW
We review the denial of summary judgment de novo,
applying the same decisional standard as the district court.
Wyner v. North Am. Specialty Ins. Co., 78 F.3d 752, 754 (1st Cir.
1996). Summary judgment is appropriate where the record, viewed
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in the light most favorable to the nonmoving party, reveals no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Id.
III. LEGAL ANALYSIS
III. LEGAL ANALYSIS
The doctrine of qualified immunity offers public
officials a defense against liability under 42 U.S.C. 1983.
See, e.g., G mez v. Toledo, 446 U.S. 635, 639 (1980). T h e
qualified immunity defense exists not only to shield officials
from liability for damages, but also to protect them from "the
general costs of subjecting officials to the risks of trial --
distraction of officials from their governmental duties,
inhibition of discretionary action, and deterrence of able people
from public service." Harlow v. Fitzgerald, 457 U.S. 800, 816
(1982).
Because the doctrine of qualified immunity recognizes
that litigation is costly to defendants, officials may plead the
defense at various stages in the proceedings. Specifically,
defendants may raise a claim of qualified immunity at three
distinct stages of the litigation. First defendants may raise
the defense on the pleadings, in a motion to dismiss. "Unless
the plaintiff's allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Second, if a
defendant cannot obtain a dismissal on the pleadings, he or she
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may move for summary judgment and "is entitled to summary
judgment if discovery fails to uncover evidence sufficient to
create a genuine issue as to whether the defendant in fact
committed those acts." Id. Finally, the defense is, of course,
available at trial. See Behrens v. Pelletier, U.S. , 116 S.
Ct. 834, 839 (1996); Unwin v. Campbell, 863 F.2d 124, 132 n.5
(1st Cir. 1988); Kennedy v. City of Cleveland, 797 F.2d 297, 299
(6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987).
Furthermore, "a district court's denial of a claim of
qualified immunity, to the extent that it turns on an issue of
law, is an appealable 'final decision' within the meaning of 28
U.S.C. 1291 notwithstanding the absence of a final judgment."
Mitchell, 472 U.S. at 530. This is so regardless of whether the
denial takes place at the pleadings stage or at summary judgment.
See Zayas-Green v. Casaine, 906 F.2d 18, 22 (1st Cir. 1990)
(citing Mitchell, 472 U.S. at 526-27); Valiente v. Rivera, 966
F.2d 21, 23 (1st Cir. 1992).
The right to immediate appeal of a district court's
denial of a motion for summary judgment based on qualified
immunity was recently confirmed in Behrens v. Pelletier, U.S.
, 116 S. Ct. 834. In that case, the Court noted that a
district court's rejection of a qualified immunity defense at
either the dismissal or summary judgment phase is a final order,
and stated that "[s]ince an unsuccessful appeal from the denial
of dismissal cannot possibly render the later denial of a motion
from summary judgment any less 'final,'" an appeal at the
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dismissal stage does not limit the right to appeal at the summary
judgment stage. Id. at 839.
These considerable rights to raise and appeal the
defense of qualified immunity are not, however, unlimited.
Qualified immunity is an affirmative defense, and the "burden of
pleading it rests with the defendant." G mez, 446 U.S. at 640.
"Since immunity must be affirmatively pleaded, it follows that
failure to do so can work a waiver of the defense." Kennedy, 797
F.2d at 300.
The Sixth Circuit, faced with the issue of waiver at
the pleadings stage in English v. Dyke, 23 F.3d 1086 (1994),
concluded that "a failure to assert the defense in a pre-answer
motion to dismiss waives the right to raise the issue in a second
pre-answer motion to dismiss." Id. at 1090. Importantly, the
court added that "[s]uch a waiver . . . would generally only
waive the defense for the stage at which the defense should have
been asserted." Id. The Sixth Circuit case law on which English
relies evidenced a concern that the right to move for dismissal
on the grounds of qualified immunity and the corresponding right
to appeal can be used for purposes of delay. See, e.g., Kennedy,
797 F.2d at 301; Yates v. City of Cleveland, 941 F.2d 444, 448-49
(6th Cir. 1991).
We share these concerns. Delay generated by claims of
qualified immunity may work to the disadvantage of the plaintiff.
Witnesses may become unavailable, memories may fade, attorneys
fees accumulate, and deserving plaintiffs' recovery is delayed.
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See Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989)
("Defendants may seek to stall because they gain from delay at
plaintiffs' expense, an incentive yielding unjustified
appeals."). Delay is also costly to the court system, demanding
more time and energy from the court and retarding the disposition
of cases.
We must balance the need to protect public officials
from frivolous suits with the need to have cases resolved
expeditiously. Without some limit on the ability of defendants
to raise immunity issues, any suit implicating the defenses of
absolute and qualified immunity faces the possibility of at least
three independent motions for summary judgment: (i) a motion for
summary judgment on the non-immunity defenses, (ii) a motion for
summary judgment based on absolute immunity, which can be
appealed immediately; (iii) a motion for qualified immunity which
can also be appealed immediately. The potential for delay is
considerable. In the instant case, for example, defendants have
filed two post-discovery motions for summary judgment and one
motion to dismiss that was converted to a motion for summary
judgment.1
In order to reduce the potential for abuse by
defendants, we believe that the defense of qualified immunity may
be deemed to have been waived if it is not raised in a diligent
1 Although Fed. R. Civ. P. 56 states that defendants may move
for summary judgment "at any time," we do not believe that this
precludes us from establishing some limits to the ability of
defendants to use the protection of qualified immunity to slow
the progress of the case.
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manner during the post-discovery, pre-trial phase. To find
otherwise is to invite strategic use of the defense by defendants
who stand to benefit from delay. This ruling does not inhibit
the ability of defendants to raise a defense of qualified
immunity and benefit from the protections it offers. Our ruling
today in no way prevents a defendant from raising the defense of
qualified immunity at summary judgment, regardless of whether it
was raised prior to discovery.
We, therefore, adopt the position of the Sixth Circuit
that the district court has the discretion to deny motions for
summary judgment that are not filed in an expeditious manner.
[T]he trial judge retains discretion not
only to set cut off dates for discovery
but to cut off motions for summary
judgment, even those which may challenge
the plaintiff's right to go to trial on
the basis of absolute or qualified
immunity. The quid pro quo is obvious:
in exchange for the defendant's right to
interrupt the judicial process, the court
may expect a reasonable modicum of
diligence in the exercise of that right.
Kennedy, 797 F.2d at 301; See also English, 23 F.3d at 1090
("[T]he trial court has discretion to find a waiver if a
defendant fails to assert the defense within the time limits set
by the court or if the court otherwise finds that a defendant has
failed to exercise due diligence or has asserted the defense for
dilatory purposes.").
We add that district courts are encouraged to enter
scheduling orders to prevent dilatory tactics on the part of
defendants with qualified immunity defenses. Absent an abuse of
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discretion, this court will enforce those scheduling deadlines by
affirming a finding of waiver and awarding double costs.
IV. APPLICATION OF THE ANALYSIS
IV. APPLICATION OF THE ANALYSIS
In the case before us, defendants-appellants chose to
raise the defense of qualified immunity only at the summary
judgment stage. As the above discussion indicates, failure to
raise the issue on the pleadings does not constitute waiver of
the right to raise the defense post-discovery. Were this the
only question before us, there would be no waiver.
In the instant case, however, defendants raised the
qualified immunity defense very late in the pre-trial, post-
discovery phase, despite the fact that they had ample opportunity
to have the issue resolved expeditiously earlier in the
proceedings, rather than generating additional delay by filing
this third motion for summary judgment. The question before this
court, therefore, is whether the defendants waived the right to
raise the defense at this stage by failing to do so in a diligent
manner and by failing to offer an explanation for the delay.
Upon de novo review, we hold that the defense of qualified
immunity has been waived for the pre-trial stage.
We note first, that because the qualified immunity
defense "depends on the facts peculiarly within the knowledge and
control of the defendant[s]," G mez 446 U.S. at 641, we see no
reason why defendants were unable to raise the defense earlier
than they did. What is more, they have not offered any
explanation for their delay.
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The record shows that defendants had several
opportunities to raise the qualified immunity defense post-
discovery. First, they could have filed a summary judgment
motion between the completion of discovery and the deadline for
dispositive motions: March 15 and March 30, 1993, respectively.
Defendants chose instead to await the outcome of their motion to
dismiss (converted to a motion for summary judgment) based on
time bar and absolute immunity, for which they filed a Memorandum
of Law on May 5, 1992. Although the failure to include the
qualified immunity defense in this initial motion for summary
judgment does not, by itself, constitute a waiver for the
purposes of the current appeal, it is noteworthy that, had
defendants included the issue in the motion and subsequently
argued all three defenses (time bar, absolute immunity, and
qualified immunity) on appeal, this Court would have resolved all
three issues in the course of a single appeal.
Second, the parties filed a Joint Pretrial Order on
February 2, 1993. District of Puerto Rico Local Rule 314.3(E)
requires each party to set forth its theory in this order.
Defendants failed to mention qualified immunity as part of their
legal theory.
Additionally, having lost in their efforts to dismiss
the case based on time bar, defendants could have filed for
summary judgment based on qualified immunity. Instead,
defendants waited almost four months until November 1, 1994, six
days before trial was scheduled to begin, to file an "Urgent
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Motion for Relief," seeking summary judgment on absolute immunity
grounds. On appeal, this Court stated that "[w]e are left to
wonder why absolute immunity was originally pled as a defense,
abandoned in the initial appeal, and then resurrected as an
emergency on remand." Guzm n II, 55 F.3d at 27. Because "[t]he
district court nevertheless denied the motion on the merits,"
this Court did not consider the absolute immunity defense waived.
Id. This second summary judgment motion gave the defendants an
additional opportunity to raise the defense of qualified
immunity, but they chose instead to argue only absolute immunity.
On November 4, 1994, the same day that the trial court
denied the motion for summary judgment based on absolute
immunity, defendants filed their Answer to the Amended Complaint
and a Notice of Appeal. The qualified immunity defense appears
on the scene for the first time in the Answer. Defendants have
offered no explanation for the failure to include the qualified
immunity defense in the motion for summary judgment filed only
three days before the Answer. It was not until almost eight
months later, on July 21, 1995, that defendants moved -- in their
third such motion -- for summary judgment based on qualified
immunity.
As the record indicates, the piecemeal fashion in which
defendants have brought forward their defense is unduly time
consuming for the courts and potentially prejudicial to the
plaintiff. Upon de novo review, we therefore find the defense of
qualified immunity to have been waived for the current stage of
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the litigation: the defense has been available to defendants
since early in the litigation and, as the district court
correctly found, the plaintiff has been prejudiced by the
defendants' intentional strategy of delay.
This decision does not imply, however, that the defense
has been waived for other stages of the litigation. Because the
defense of qualified immunity may be raised and appealed at
multiple stages of the trial, it would be inappropriate to find
waiver for all stages in the current case. We need not decide
whether a sufficient showing of prejudice to the plaintiff would
result in waiver for all stages: even assuming so arguendo, there
is no such showing in the instant case. Our decision thus leaves
defendants free to present the qualified immunity defense at
trial, despite the fact that the defense is waived for pre-trial
purposes.
We add that defendants' reliance on Valiente v. Rivera,
966 F.2d 21 (1st Cir. 1992), is misplaced. In that case, this
Court ruled that a motion for summary judgment filed on the eve
of the originally scheduled trial date could not be denied as
untimely where a new trial date had been scheduled. Instead, the
timeliness of the motion had to be viewed in light of the new
date. Id. at 23. In this case, the problem is not that the
defense has filed a motion on the eve of trial. Rather, it is
that defendants have pursued a strategy of delay which has
prejudiced the plaintiff and abused the judicial process. We
believe, as we have already stated, that some limits must be
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placed on the ability of defendants to use their immunity
defenses to frustrate and delay the rights of plaintiffs.
V. CONCLUSION
V. CONCLUSION
We affirm the district court's finding of waiver and
affirm
denial of defendants' summary judgment motion. In light of this
finding, we need not reach the merits of the qualified immunity
claim. Considering the intentional delay imposed on the case by
defendants-appellants, we hereby order defendants-appellants to
pay double costs.
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