

                  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 &amp; 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-
