1996 WL 111588 (9th Cir. 1996) (qualified immunity waived where not mentioned until close of defendant's case at trial); Yates v. Cleveland, 941 F.2d 444, 448-49(6th Cir. 1991) (declining to dispose of appeal on grounds of waiver, but noting that defendant did not raise issue of qualified immunity until days before trial); Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 668 (1st Cir. 1996) (holding that "defense of qualified immunity may be deemed waived if it is not raised in a diligent manner during the post-discovery, pre-trial phase," but not preventing defendant from raising defense on "summary judgment, regardless of whether it was raised prior to discovery").
Fourth, while the qualified immunity defense was raised in Defendants' motion in a shallow and perfunctory fashion, it was unambiguously raised. See, e.g., Bakalis v. Golembeski, 125 F.3d 576, 579 (7th Cir. 1997) (finding waiver of qualified immunity on one basis where defense on this basis was abandoned); Del Raine v. Carlson, 77 F.3d 484, 1996 WL 46451, *14 (7th Cir. 1996) (discussing waiver of qualified immunity where defendant failed to raise defense until third motion for summary judgment); Blissett v. Coughlin, 66 F.3d 531, 538-39 (2d Cir. 1995) (qualified immunity defense waived where it was not subject of pretrial motions, mentioned in pretrial order or discussions with court, or subject of proposed jury instructions).
Perhaps anticipating that Plaintiffs would raise the waiver issue, Defendants have attempted to explain their litigation strategy. As an apparently post hoc rationalization for why their qualified immunity defense was raised so late in the day, Defendants note that Plaintiffs claim of an Eighth Amendment violation was so "nebulous . . . that Defendants could not ascertain without discovery what care Plaintiffs were claiming was appropriate [sic]." Defendants Reconsideration Brief at 25 n.*. Presuming that Defendants meant that they could not ascertain which care Plaintiffs were claiming was inappropriate, the Court finds this somewhat incredible. The Second Amended Complaint pled in relatively detailed fashion the aspects of medical care which Plaintiffs claim were inadequate and quite certainly could not be considered a "bare-bones" complaint. See Second Amended Complaint PP 25-31 (dated Aug. 2, 1993). Given the evidence adduced by both Defendants and Plaintiffs in support of or in opposition to Defendants' motion for summary judgment, it does not appear that a great many surprises arose during discovery, at least in terms of the basic contours of Plaintiffs' claim. Plaintiffs' Second Amended Complaint was not so ambiguous that the defense of qualified immunity could not have been asserted before discovery began. Cf. Pro v. Donatucci, 81 F.3d 1283, 1286 n.1 (3d Cir. 1996) (discussing one type of ambiguity which prevents resolution of qualified immunity issue before discovery). Indeed, accepting Defendants argument would mean that, because most complaints are more nebulous that Plaintiffs', qualified immunity would almost never be resolved before discovery.
Furthermore, while the Supreme Court in Behrens "acknowledged," Defendants Reconsideration Brief at 25 n.*, that the district "court denied [a] summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery," Behrens, 116 S. Ct. at 837, by no means did the Supreme Court endorse this procedure. Indeed, as I noted in Rouse III, the Supreme Court has held that "until the threshold immunity question is resolved, discovery should not be allowed." Siegert, 500 U.S. 226 at 232-33, 114 L. Ed. 2d 277, 111 S. Ct. 1789; see also Harlow, 457 U.S. at 818 ("If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed."); Rouse III, 1997 WL 757548, *12; X-Men Sec., Inc. v. Pataki, 983 F. Supp. 101, 1997 U.S. Dist. LEXIS 17077, *7, 1997 WL 675252, *19 (E.D.N.Y. 1997) (discussing nature of "threshold immunity question").
Also, a "motion in lieu of an answer," Defendants' Reconsideration Brief at 25 n.*, presumably a motion to dismiss for failure to state a claim, is not the only procedural mechanism by which Defendants could have asserted their qualified immunity defense before discovery; a motion for summary judgment can be made by a defending party "at any time," Fed. R. Civ. P. 56(b), including before discovery, subject, of course, to the non-moving party's filing of affidavits pursuant to Rule 56(f). Thus, while the Court finds Defendants' explanation of their litigation strategy incredible, these considerations do not compel a finding that the qualified immunity defense has been waived. Therefore, Defendants have not waived the defense of qualified immunity and, to this extent, Plaintiffs' motion for reargument is denied.
For the reasons set forth above, Defendants' motion for reconsideration will be denied. Plaintiffs' motion for reconsideration will be granted in part, and Defendants' motion for summary judgment as to Plaintiffs' claim under the ADA will be denied. Plaintiffs' motion for certification of Defendants' appeal as frivolous will be denied. Finally, the Court cannot find that the defense of qualified immunity has been waived and, to this extent, Plaintiffs' motion for reargument is denied.
Dated: February 9, 1998
STEPHEN M. ORLOFSKY
United States District Judge
This matter having come before the Court on the motion of Defendants, William Plantier, William H. Fauver, Dr. Robert Cardinale, Dr. Narsimha Reddy, and Elaine Allen, R.N., for reargument, Peter Verniero, Esq., Attorney General of New Jersey, Jeffrey J. Miller, Esq., Assistant Attorney General, E. Jayroe Wurst, Esq., Deputy Attorney General, William P. Flahive, Esq., Deputy Attorney General, appearing on behalf of Defendants, William Plantier, William H. Fauver, Dr. Robert Cardinale, Dr. Narsimha Reddy, and Elaine Allen, R.N., and Lawrence S. Lustberg, Esq., Mark A. Berman, Esq., Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., appearing on behalf of Plaintiffs, Darryl Rouse, Charles Brooks, Stephen Jankowski, Julio Baez, and Robert Kammerer; and
The Court having considered the submissions of the parties; and
For the reasons set forth in an OPINION filed concurrently with this ORDER,
IT IS HEREBY ORDERED on this 9th day of February, 1998, that Defendants' motion for reargument is DENIED; and
IT IS FURTHER ORDERED that Plaintiffs' motion for reargument is GRANTED with respect to Plaintiffs' claims for injunctive relief under the Eighth Amendment, and is DENIED in all other respects; and
IT IS FURTHER ORDERED that Defendants' motion for summary judgment as to liability under the Americans with Disabilities Act is DENIED as to all Defendants; and
IT IS FURTHER ORDERED that Plaintiffs' motion for certification of Defendants' appeal as frivolous is DENIED.
STEPHEN M. ORLOFSKY
United States District Judge