United States District Court, D. Oregon
LUZ A. NUNEZ, Plaintiff,
B. JONES, and JOHN DOES 1-4, in their individual capacities as agents of the United States Immigration and Customs Enforcement, Defendants.
Stephen S. Walters and David Henretty, Oregon Law Center,
Jonathan M. Dennis, Oregon Law Center, Attorneys for
J. Williams, United States Attorney, and Dianne Schweiner,
Assistant United States Attorney, United States
Attorney's Office, District of Oregon, Attorneys for
OPINION AND ORDER
J. IMMERGUT, UNITED STATES DISTRICT JUDGE
August 12, 2019, Magistrate Judge Patricia Sullivan issued
her Findings and Recommendation (“F&R”) in
this case, in which Plaintiff Luz Nunez brings a
Bivens claim against five U.S. Immigration and
Customs Enforcement (“ICE”) agents-Defendant B.
Jones and four John Doe defendants. ECF 70. Magistrate Judge
Sullivan recommended that this Court deny Defendant
Jones's Motion to Dismiss, deny Defendant Jones's
Motion for Stay of Discovery, grant Plaintiff's Motion
for Discovery and/or Inspection, and defer ruling on
Defendant Jones's Motion for Summary Judgment.
Id. at 20.
Jones timely filed objections to the F&R. ECF 73.
Plaintiff filed a response to objections. ECF 74. This Court
has reviewed de novo the portions of the F&R to which
Defendant Jones objected. This Court adopts in part
Magistrate Judge Sullivan's Findings and Recommendation
as provided herein. Defendant Jones's Motion to Dismiss
is denied, Defendant Jones's Motion for Stay of Discovery
is denied, and a ruling on Defendant Jones's Motion for
Summary Judgment is deferred until the parties are provided
an opportunity to gather limited discovery on the issue of
the Federal Magistrates Act (“Act”), as amended,
the court may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). If a
party files objections to a magistrate judge's F&R,
“the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. But the court is not required to review, de novo
or under any other standard, the factual or legal conclusions
of the F&R to which no objections are addressed. See
Thomas v. Arn, 474 U.S. 140, 149-50 (1985); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc). Nevertheless, the Act “does not
preclude further review by the district judge, sua
sponte” whether de novo or under another standard.
Thomas, 474 U.S. at 154. Indeed, the Advisory
Committee Notes to Fed.R.Civ.P. 72(b) recommend that
“[w]hen no timely objection is filed, ” the Court
review the magistrate judge's recommendations for
“clear error on the face of the record.”
Judge Sullivan concluded that Plaintiff pleaded a viable
Bivens claim sufficient to survive Defendant
Jones's motion to dismiss. See ECF 70 at 15-16.
Then, in considering the parties' discovery motions and
the motion for summary judgment, the magistrate judge found
that the parties presented conflicting versions of the facts
concerning the arrest. Id. at 19-20. Rather than
denying the summary judgment motion due to the disputed
material facts, the magistrate judge applied a procedural
approach outlined by the Supreme Court in
Crawford-El and Anderson. See ECF
70 at 19-20; Crawford-El v. Britton, 523 U.S. 574,
597-600 (1998); Anderson v. Creighton, 483 U.S. 635,
646 n.6 (1987). The magistrate judge deferred ruling
on the summary judgment motion so that the parties may gather
discovery on the issue of qualified immunity. In so doing,
the magistrate judge preserved an opportunity for the court
to assess the validity of Plaintiff's claim before
permitting the case to proceed to trial.
Jones objects to the following portions of the F&R: (1)
the magistrate judge's refusal to rule on Defendant
Jones's motion for summary judgment; (2) the conclusion
that there was no probable cause to arrest Plaintiff; (3) the
conclusion that Plaintiff's arrest was retaliatory based
on her protected speech; (4) the conclusion that the law was
clearly established under the totality of the circumstances;
and (5) certain factual findings. ECF 73 at 2.
Jones first contends that Magistrate Judge Sullivan erred by
refusing to rule on the motion for summary judgment. ECF 73
at 2. The magistrate judge concluded that this Court should
defer deciding the motion for summary judgment so that
Plaintiff may gather limited discovery on the issue of
qualified immunity. ECF 70 at 19. This Court adopts the
F&R's recommendation to defer ruling on summary
judgment because the parties present differing versions of
the arrest at issue. To enable the Court to give a full and
fair determination of whether qualified immunity justifies
dismissing the claim pursuant to Defendant Jones's motion
for summary judgment, the parties may gather limited
discovery on the issue of qualified immunity.
the purposes of qualified immunity is to protect government
officials from “broad-ranging discovery” that can
be “disruptive of effective government.” See
Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982).
Therefore, the Supreme Court has “stressed the
importance of resolving immunity questions at the earliest
possible stage in litigation.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam). A
defendant pleading qualified immunity is entitled to a
dismissal before discovery unless the plaintiff's
allegations state a claim that violates clearly established
law. See Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). “Even if the plaintiff's complaint
adequately alleges the commission of acts that violated
clearly established law, the defendant 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. The Supreme Court
has explained that qualified immunity “is an
immunity from suit rather than a mere defense to
liability; . . . it is effectively lost if a case is
erroneously permitted to go to trial.” Saucier v.
Katz, 533 U.S. 194, 200-01 (2001) (quotation marks
omitted). The Court has also emphasized that district judges
have broad discretion to manage discovery to protect the
interests of the qualified immunity defense. See
Anderson, 483 U.S. at 646 n.6; Crawford-El, 523
U.S. at 599-01; Harlow, 457 U.S. at 818.
motion for summary judgment will be denied if there exists a
genuine issue of material fact and the moving party is not
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a). The court must view the evidence in the light
most favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252,
1257 (9th Cir. 2001).
noted above, the F&R relied on the Supreme Court's
holdings in Crawford-El and Anderson in
recommending that this Court defer ruling on the motion for
summary judgment. Defendant Jones challenges the
applicability of Crawford-El to the present case.
ECF 73 at 4-7. Defendant Jones argues that the
Crawford-El procedures do not apply to claims with
an objective standard, as in this case, but instead only to
claims that require proof of motive. Id. at 5.
However, the Supreme Court described the same approach in
Anderson, involving a Fourth Amendment claim that
did not require proof of motive. 483 U.S. at 646 n.6 (1987).
In Anderson, the Supreme Court explained that
limited discovery is sometimes required before deciding a
motion for summary judgment based on a theory of ...