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Nunez v. Jones

United States District Court, D. Oregon

November 20, 2019

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 Plaintiff.

          Billy J. Williams, United States Attorney, and Dianne Schweiner, Assistant United States Attorney, United States Attorney's Office, District of Oregon, Attorneys for Defendants.



         On 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.[1] 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.

         Defendant 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 qualified immunity.


         Under 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.”


         Magistrate 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.

         Defendant 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.

         A. Summary Judgment

         Defendant 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.

         One of 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.

         A 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).

         As 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 ...

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