USCA1 Opinion

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
_____________ __________________
brief for appellants.
Victoria A. Ferrer for appellees.
__________________

Gaztambide & Plaza were on

__________________

____________________

October 28, 1996

____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

The parties come before us for

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.

found the

qualified

immunity defense

defendants'

failure

to

raise

proceedings.

We

affirm

the

to

the

The district court

have been

issue

district

earlier

court's

defendants-appellants summary judgment motion.

waived

in

by

the

denial

of

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.
I.

On June

Rivera

27,

was convicted

BACKGROUND
BACKGROUND

1989, plaintiff-appellee

of

murder

and

sentenced

H ctor

to

119

Guzm n-

years

imprisonment.

Guzm n's father, H ctor Guzm n-Fern ndez, began an

independent investigation into

been

convicted

and

the murder for which his

eventually

innocence.

Guzm n was released

members

his

Secretary

of

of

family

Justice

defendants

Guzm n's case with

on June

subsequently

of

Department officials under

that the

uncovered

Puerto

Rico

42 U.S.C.

proof

15, 1990.

filed

suit

Guzm n's

Guzm n and

against

the

and

two other

Justice

1983.

The suit

alleged

had failed

to reinvestigate

adequate speed

and to move

even after his innocence had been established.

-2-

of

son had

the facts

for his

of

release

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

remanded.

1995)

grounds.

of limitations

grounds and

In Guzm n-Rivera v. Rivera-Cruz, 55 F.3d 26 (1st Cir.

_____________
___________

(Guzm n II), we
_________

defendants'

on statute

reviewed the

motion

for summary

We found

that the

district court's

judgment

defendants

on absolute

are not

denial of

immunity

"entitled to

absolute immunity for any delays or inadequacies in their conduct

of the investigation,"

their

post-investigation

Guzm n's release."

failure

to

go

absolutely immune for

into

court

to

seek

Id. at 28.
___

The case is

we

but that "they are

now before us again.

For the third time,

are presented with an appeal from the district court's ruling

on a

summary judgment motion.

denial of

summary judgment on

summary judgment motion was

grounds of

raise

this

This time, the appeal

qualified immunity grounds.

denied by the district court

waiver; "[d]efendants

defense

during

the

have had ample

district

waived the qualified immunity

The

on the

opportunity to

court's

proceedings as well as through two appeals . . . .

that defendants'

is from a

prolonged

Thus, we find

defense."

Order

of the District Court, August 4, 1995.

II.
II.

We

applying

review

the same

STANDARD OF REVIEW
STANDARD OF REVIEW

the denial

decisional

of

summary

standard as

judgment de novo,
________

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

-3-

in

the light most favorable

genuine issue as to

to the nonmoving

any material fact, and

entitled to judgment as a matter of law.

III.
III.

The

doctrine

officials a defense

of

party, reveals no

the moving party

Id.
___

LEGAL ANALYSIS
LEGAL ANALYSIS

qualified

against liability

immunity

under 42

offers

from

defense exists

liability for damages, but

general

not only to

also to protect

costs of subjecting officials

distraction

of

officials

from

1983.

shield officials

them from "the

to the risks

their

public

U.S.C.

See, e.g., G mez v. Toledo, 446 U.S. 635, 639 (1980).

___ ____ _____
______

qualified immunity

is

of trial --

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

that

of qualified immunity

recognizes

litigation is costly to defendants, officials may plead the

defense

at various

defendants

may

stages

raise a

in the

claim

proceedings.

of qualified

Specifically,

immunity

distinct stages

of the litigation.

First defendants

the defense on

the pleadings, in a

motion to dismiss.

at three

may raise

"Unless

the plaintiff's allegations state a claim of violation of clearly

established

law,

defendant pleading

entitled

to

dismissal before

Mitchell
________

v. Forsyth, 472
_______

the

U.S. 511,

qualified

commencement

526 (1985).

immunity

is

of discovery."

Second,

if a

defendant cannot obtain a

dismissal on the pleadings, he

or she

-4-

may

move

judgment

create

for

summary

if discovery

a genuine

committed

issue

those acts."

available at trial.

judgment

fails to

as to

Id.
___

and

"is

entitled

uncover evidence

whether

to summary

sufficient to

the defendant

in

fact

Finally, the defense is, of course,

See Behrens v. Pelletier, __ U.S. __, 116 S.

___ _______
_________

Ct. 834,

(1st Cir.

839 (1996); Unwin

_____

v. Campbell, 863
________

F.2d 124,

132 n.5

1988); Kennedy v. City of Cleveland, 797 F.2d 297, 299

_______
_________________

(6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987).

____________

Furthermore, "a

qualified immunity, to

law, is an appealable

U.S.C.

district court's denial of

the extent that it

turns on an

a claim of

issue of

'final decision' within the meaning

1291 notwithstanding the absence

Mitchell, 472 U.S. at 530.

________

of 28

of a final judgment."

This is so regardless

of whether the

denial takes place at the pleadings stage or at summary judgment.

See
___

Zayas-Green
___________

v. Casaine,
_______

(citing Mitchell, 472

________

906 F.2d

U.S. at 526-27);

F.2d 21, 23 (1st Cir. 1992).

18,

22 (1st

Cir. 1990)

Valiente v. Rivera,
________
______

966

The

denial

of a

right to

motion

immediate appeal

for

summary

immunity was recently confirmed in

__, 116

district

either

S.

Ct. 834.

that

court's rejection

of a

district court's

judgment based

on

qualified

Behrens v. Pelletier, __ U.S.

_______
_________

case, the

Court

noted that

qualified immunity

defense at

the dismissal or summary judgment phase is a final order,

and stated that "[s]ince

of

In

of a

an unsuccessful appeal from the

denial

dismissal cannot possibly render the later denial of a motion

from summary

judgment

any

less

-5-

'final,'"

an

appeal

at

the

dismissal stage does not limit the right to appeal at the summary

judgment stage.

These

defense

of

Id. at 839.
___

considerable

qualified immunity

rights

to

are

not,

raise and

it rests with the defendant."

"Since immunity

the "burden of

G mez, 446 U.S. at 640.

_____

affirmatively pleaded, it

follows that

failure to do so can work a waiver of the defense."

Kennedy, 797
_______

F.2d at 300.

must be

the

however, unlimited.

Qualified immunity is an affirmative defense, and

pleading

appeal

The Sixth Circuit,

the

pleadings stage

faced with the

in English
_______

concluded that "a failure

v. Dyke,
____

issue of waiver

at

23 F.3d

1086 (1994),

to assert the defense in

a pre-answer

motion to dismiss waives the right to raise the issue in a second

pre-answer

court

motion to dismiss."

added that

"[s]uch a

waiver . .

waive the defense for the stage

been asserted."

Id.
___

Id. at 1090.
___

Importantly, the

. would

generally only

at which the defense should have

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

to appeal can be used for purposes of delay.

right

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,

fees accumulate,

memories may

and deserving plaintiffs'

fade, attorneys

recovery is delayed.

-6-

See
___

Apostol
_______

v. Gallion,
_______

870 F.2d

1335,

1338 (7th

Cir. 1989)

("Defendants

may seek to stall

plaintiffs'

expense,

appeals.").

Delay is also costly to the court system, demanding

an

because they gain

incentive

from delay at

yielding

unjustified

more time and energy from the court and retarding the disposition

of cases.

We must

balance the

from frivolous

suits

expeditiously.

Without

to raise immunity

with

need to protect

the

need

to

some limit on the

issues, any suit

have

public officials

cases

resolved

ability of defendants

implicating the defenses

of

absolute and qualified immunity faces the possibility of at least

three independent motions for summary judgment:

summary judgment on

summary

judgment

(i) a motion for

the non-immunity defenses, (ii) a motion for

based

on

absolute

immunity,

which

can

be

appealed immediately; (iii) a motion for qualified immunity which

can also be

appealed immediately.

considerable.

filed

motion

The potential

for delay

is

In the instant case, for example, defendants have

two post-discovery

to dismiss

motions for

that was

summary judgment

converted to

a motion

and one

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

____________________

Although Fed. R. Civ.

P. 56 states that

for summary judgment "at any

precludes
defendants

us from

time," we do not believe that

establishing

to use the

defendants may move

some limits

protection of qualified

the progress of the case.

-7-

to the

this

ability of

immunity to slow

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

the

ability

immunity

from delay.

of defendants

to

This

raise

ruling does not inhibit

defense

of

and benefit from the protections it offers.

today in no way prevents a defendant from raising

qualified immunity at summary

was raised prior to discovery.

qualified

Our ruling

the defense of

judgment, regardless of whether it

We, therefore, adopt the

that

the district court has

position of the Sixth Circuit

the discretion to

deny motions for

summary judgment that are not filed in an expeditious manner.

[T]he trial judge retains

only to
but

discretion not

set cut off dates

to

cut

off

for discovery

motions

for

judgment, even those which

the plaintiff's right to
the

basis

of

immunity.

summary

may challenge
go to trial

absolute

or

The quid pro quo

on

qualified
is obvious:

in exchange for the defendant's

right to

interrupt the judicial process, the court

may

expect

reasonable

modicum

of

diligence in the exercise of that right.

Kennedy, 797
_______

("[T]he

defendant

F.2d at

trial court

301;

has

See also English,

________ _______

discretion

to

find

23 F.3d

waiver

at 1090

if

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

to prevent

are encouraged

scheduling

orders

dilatory tactics

defendants

with qualified immunity defenses.

on the

to enter

part of

Absent an abuse of

-8-

discretion, this court will enforce those scheduling deadlines by

affirming a finding of waiver and awarding double costs.

IV.
IV.

In

raise the

the case before

defense

judgment stage.

raise

APPLICATION OF THE ANALYSIS

APPLICATION OF THE ANALYSIS

of qualified

As the

the issue on the

the right to

us, defendants-appellants chose to

raise the

immunity

only at

the

above discussion indicates,

pleadings does not

summary

failure to

constitute waiver of

defense post-discovery.

Were this

the

only question before us, there would be no waiver.

In

qualified

the

instant case,

immunity defense

very

however, defendants

late in

raised the

the pre-trial,

post-

discovery phase, despite the fact that they had ample opportunity

to

have

the

issue

proceedings, rather

resolved

expeditiously

than generating

earlier

additional delay by

this third motion for summary judgment.

in

the

filing

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

Upon

and by

de novo
_______

failing to

review,

offer an

we hold

explanation for

that

the defense

the delay.

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.

_____

reason why

defendants were unable

than

did.

they

What

is

more,

explanation for their delay.

-9-

at 641, we see

to raise the

they have

no

defense earlier

not

offered

any

The

opportunities

discovery.

motion

record

to

shows

raise

First,

they

that

the qualified

could have

between the completion of

dispositive motions:

Defendants

defendants

immunity

filed

had

several

defense

a summary

post-

judgment

discovery and the deadline for

March 15 and March

30, 1993, respectively.

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,

qualified

judgment

Although the

immunity defense

does

purposes of

defendants

argued

1992.

not,

the

by

all

include the

initial motion

for summary

itself, constitute

current

included the

in this

failure to

appeal,

issue

three defenses

it is

in the

(time

bar,

waiver

noteworthy

motion and

for

the

that,

had

subsequently

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

February

2, 1993.

District

requires

each party

to

filed a

of Puerto Rico

set forth

its

Defendants failed to mention qualified

legal theory.

Joint Pretrial

Order on

Local Rule 314.3(E)

theory in

this

order.

immunity as part of their

Additionally, having

the

case

summary

based on

judgment

time bar,

based

on

lost in their efforts

defendants

qualified

could have

immunity.

defendants waited almost four months until

days

before trial

was scheduled

to begin,

to dismiss

filed for

Instead,

November 1, 1994, six

to file

an "Urgent

-10-

Motion for Relief," seeking summary judgment on absolute immunity

grounds.

On

wonder why

Court stated that

absolute immunity was

abandoned

in

emergency on

district

appeal, this

the initial

remand."

"[w]e are left

originally pled as

appeal,

and then

court nevertheless

denied the

a defense,

resurrected

Guzm n II, 55 F.3d at 27.

_________

to

as an

Because "[t]he

motion on

the merits,"

this Court did not consider the absolute immunity defense waived.

Id.
___

This second

additional

summary judgment motion gave the

opportunity

to

raise

the

defendants an

defense

of

qualified

immunity, but they chose instead to argue only absolute immunity.

On

denied

the

November 4, 1994, the same day that the trial court

motion

for

summary

immunity, defendants filed their

and a Notice of

Appeal.

judgment

based

on

absolute

Answer to the Amended Complaint

The qualified immunity

defense appears

on the scene

for the first time in the

offered no explanation for

immunity

three days

defense in the

before the

Answer.

the failure to include

motion for summary

Answer.

It was not

Defendants have

the qualified

judgment filed only

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

consuming

plaintiff.

have brought

for

the courts

forward

and

their defense

potentially

is unduly

prejudicial to

time

the

Upon de novo review, we therefore find the defense of

_______

qualified immunity to have

been waived for the current

-11-

stage of

the

litigation:

since

early

correctly

in

found,

the defense has

the

the

been available

litigation

and,

as

plaintiff

has

been

the

to defendants

district

prejudiced

court

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

appealed at

of

qualified immunity

may

be raised

and

multiple stages of the

waiver for

trial, it would be inappropriate

all stages in the

current case.

We

to find

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.

defendants

trial,

free to

present

Our decision thus leaves

the qualified

immunity defense

at

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),

Court ruled that a motion

of the originally

is misplaced.

In

that case, this

for summary judgment filed on

scheduled trial

date could not

untimely where a new trial date had been scheduled.

the eve

be denied

as

Instead, the

timeliness of

date.

the motion had

Id. at 23.
___

defense has filed

that

defendants

In this

have

as we

pursued a

strategy

of

the new

that the

Rather,

delay

the judicial

stated, that

-12-

is not

eve of trial.

and abused

have already

in light of

case, the problem

a motion on the

prejudiced the plaintiff

believe,

to be viewed

it is

which has

process.

some limits

We

must be

placed

on

the

ability

of

defendants

to

use

their immunity

defenses to frustrate and delay the rights of plaintiffs.

V.
V.

We affirm
affirm
______

denial

the district

court's finding of

of defendants' summary judgment motion.

finding, we need not

claim.

CONCLUSION
CONCLUSION

reach the merits of the

waiver and

In light of this

qualified immunity

Considering the intentional delay imposed on the case by

defendants-appellants, we hereby

pay double costs.

order defendants-appellants

to

-13-