
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  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.                                         -2-                    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                                         -3-          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                                         -4-          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                                         -5-          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.                                         -6-          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.                                         -7-          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                                         -8-          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.                                         -9-                    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                                         -10-          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                                         -11-          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                                         -12-          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.                                         -13-
