
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1473             JOHN M. HEGARTY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF                       KATHERINE A. HEGARTY, AND INDIVIDUALLY,                                 Plaintiff, Appellee,                                          v.               SOMERSET COUNTY, GARY WRIGHT, RENE GUAY, WILFRED HINES,                      THOMAS GIROUX JR., WILLIAM CRAWFORD, JR.,                               Defendants, Appellants.                                 ____________________          No. 94-1474             JOHN M. HEGARTY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF                                KATHERINE A. HEGARTY,                                 Plaintiff, Appellee,                                          v.                               SOMERSET COUNTY, ET AL.,                                Defendants, Appellees,                                                                                      __________                                     GARY WRIGHT,                                Defendant, Appellant.                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________                            MEMORANDUM AND ORDER OF COURT                                 Entered May 31, 1994               Katherine Hegarty was  shot and killed in her Jackman, Maine          home by police officers attempting to execute a warrantless entry          and  arrest.  Her husband, James, both individually and on behalf          of his wife's estate, brought suit for money damages, against the          officers  involved, county  and state supervisory  personnel, and          Somerset County.  The suit alleged claims pursuant to 42 U.S.C.            1983 as well as pendent state claims under the Maine Civil Rights          Act, 5 M.R.S.A.     4681-4685  (Supp. 1993), and  the Maine  Tort          Claims Act, 14 M.R.S.A.    8101-8118 (1980 & Supp. 1993).               The defendants  moved for summary  judgment on the  basis of          qualified immunity.  The court granted summary  judgment in favor          of Somerset  County and the supervisory personnel  on the federal          and state civil rights claims.  The court denied summary judgment          on the  basis of  qualified immunity  to the  individual officers          involved - Gary Wright, Rene Guay, Wilfred Hines, Thomas Guiroux,          Jr., and William Crawford, Jr.1               The  five  officers have  taken  an immediate  interlocutory          appeal  of the  denial of  qualified immunity.   See  Mitchell v.                                                           ___  ________          Forsyth,  472  U.S.  511  (1985).    These defendants  asked  the          _______          district  court to stay discovery in the case while these appeals          are pending.  The district court denied that request.  It ordered          (a) plaintiff to designate  experts and disclose expert testimony          by May 15, 1994; (b) defendants to designate experts and disclose          expert  testimony  by June  1,  1994; and  (c) both    parties to          complete discovery  by July 1,  1994.  It  set an  expected trial          date of August 15, 1994.               In  denying the  officers'  request to  stay discovery,  the          court concluded that "a  significant amount of discovery remains"          and that  "that discovery would not disrupt greatly the operation          of State government."   It also  stated that "The  Court made  it          clear  to  counsel that  the whole  purpose with  proceeding with          discovery  is not  to waste  the time  pending the  First Circuit          Court  decision in the event the Court affirms the District Court                                        ____________________               1Apart  from asserting  qualified immunity  as a  defense to          Hegarty's claims under   1983 and the Maine Civil Rights Act, all          the defendants asserted "discretionary immunity"  under state law          for the claims  brought pursuant  to the Maine  Tort Claims  Act.          The court found that all the  defendants, except Somerset County,          are immune from suit on Hegarty's state tort claims on  the basis          of discretionary immunity.               So, what remains is  this: Hegarty's   1983 and  Maine Civil          Rights  Act  claims  against  the five  individual  officers  and          Hegarty's Maine Tort Claims Act claims against Somerset County.          opinion on qualified immunity."               On May 9, 1994,  we entered an order granting  the officers'          emergency request to stay  district court discovery pending their          appeal  of the  denial of  qualified immunity.   The  request was          granted  "pending further order of this court."  We now elaborate          the basis  for our May 9  order and extend the  stay of discovery          pending our determination of these appeals.               A qualified immunity  defense is an  immunity from suit  and          the rationale for allowing an immediate appeal from the denial of          qualified immunity is that the  immunity from suit is effectively          lost  if a  case is erroneously  permitted to  go to  trial.  See                                                                        ___          Mitchell v. Forsyth, 472  U.S. at 525-27.  The immunity from suit          ________    _______          includes protection from  the burdens of discovery.   "Until this          threshold immunity question is  resolved, discovery should not be          allowed."  Harlow  v. Fitzgerald, 457  U.S. 800, 818 (1982).   We                     ______     __________          recognize that Harlow's reference to staying discovery was in the                         ______          context  of  the  district  court's resolution  of  the  immunity                            _________________          question.  But in light of the Court's later determination that a          denial of  qualified immunity is entitled  to immediate appellate          review,  see Mitchell v. Forsyth, supra, we believe that the stay                   ___ ________    _______  _____          of discovery,  of necessity,  ordinarily must carry  over through          the appellate court's resolution of that question, so long as the              _________________          appeal  is non-frivolous.   The  rationale for  staying discovery          applies  with  no  less force  while  the  appeal,  to which  the          officers are entitled, proceeds.  It is important to note what is          not  involved here.  As the officers concede, the district court,          ___          prior  to its ruling on the issue of qualified immunity, properly          ordered  some discovery limited to  that issue.   See Anderson v.                                  ______________________    ___ ________          Creighton, 483 U.S. 635, 646 n.6  (1987) (reciting that discovery          _________          tailored specifically  to the question of  qualified immunity may          be  necessary before a  motion for summary  judgment on qualified          immunity  grounds  can be  resolved).   What  the  district court          thereafter  authorized, and  what  we have  stayed pending  these          __________          appeals,  is more extensive  discovery directed at  the merits of          the case.2               We need  go no  further.   For  the reasons  cited, we  stay          further discovery pending resolution of the instant appeals.                                        ____________________               2We also point out that the underlying case is one for money          damages  only and does not request injunctive relief, as to which          a  defense  of qualified  immunity is  immaterial.   Cf.  Lugo v.                                                               ___  ____          Alvarado, 819 F.2d  5 (1st Cir. 1987) (concluding  that equitable          ________          claims stand on  a different footing than damage claims, so as to          authorize  a  district  court  to  permit  discovery  as  to  the          equitable claims).                                                   
