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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

LISA HANIGAN,

Plaintiff,

v.

CITY OF KENT, et al.,

Defendants.

CASE NO. C06-176JLR

ORDER

I. INTRODUCTION

This matter comes before the court on Plaintiff’s motion to compel discovery (Dkt.

# 14). No party has requested oral argument, and the court finds the motion appropriate

for disposition on the basis of the parties’ briefing and accompanying declarations. For

the reasons stated below, the court GRANTS the motion in part, and DENIES it in part.

II. BACKGROUND

Plaintiff Lisa Hanigan alleges that Defendant John Cagle, a police officer for the

City of Kent (the “City”), unlawfully disclosed her home address to her ex-husband,

against whom she had an order of protection. Ms. Hanigan claims that Mr. Cagle

violated the United States Constitution, as well as Washington law, by disclosing her

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ORDER – 2

address. She has sued Officer Cagle and the City for alleged violations of 42 U.S.C.

§ 1983 and two Washington statutes. 

 Although discovery in this action began with initial disclosures on March 14,

2006, Officer Cagle has yet to provide any discovery in this action. He claims that he is

entitled to qualified immunity, and that the immunity shields him from discovery. In her

motion to compel, Ms. Hanigan challenges both Officer Cagle’s refusal to provide

responses to her interrogatories and requests for production and the City’s refusal to

answer discovery requests that would require it to obtain information from Officer Cagle.

III. ANALYSIS

The court’s analysis focuses solely on Ms. Hanigan’s § 1983 claims and Officer

Cagle’s qualified immunity defense to those claims. Ms. Hanigan makes no argument

pertaining to her state law claims, nor do Defendants.

Section 1983 provides a remedy to citizens deprived of the protections of the

United States Constitution or other laws by individuals acting “under color of law.” S.

Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003). Qualified

immunity is a defense to liability under § 1983 that applies, in general, when the accused

official reasonably believed his conduct to be lawful. See generally, Harlow v.

Fitzgerald, 457 U.S. 800, 813-19 (1982).

As Officer Cagle is quick to point out, qualified immunity is not merely a shield

from damages, it provides “an entitlement not to stand trial or face the other burdens of

litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow). The Court in

Mitchell noted that unless a “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.” Id. Similarly, in Harlow, the Court stated that trial

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ORDER – 3

courts should not permit discovery against a defendant claiming qualified immunity until

the resolution of the “threshold [qualified] immunity question.” 457 U.S. at 815.

From the language of Mitchell and Harlow, Officer Cagle derives a novel legal

principle: he contends that Ms. Hanigan is “not entitled to discovery unless [she] can

overcome the defense of qualified immunity,” and, more importantly, that he “is entitled

to qualified immunity until the Court decides otherwise.” Defs.’ Opp’n at 3. Officer

Cagle is mistaken.

Returning to the text of Mitchell, an “entitle[ment] to dismissal before the

commencement of discovery” arises only if “plaintiff’s allegations [do not] state a claim

of violation of clearly established law . . . .” 472 U.S. at 526. Although the Mitchell

Court had no occasion to address the issue, subsequent case law leaves no doubt that a

motion to dismiss under Fed. R. Civ. P. 12(b)(6) is the appropriate means of determining

in advance of discovery whether a plaintiff has stated a claim under § 1983 sufficient to

overcome a qualified immunity defense. In Butler v. San Diego Dist. Attorney’s Office,

370 F.3d 956, 963-64 (9th Cir. 2004), the court explained that “in the usual case where a

defendant asserts an official immunity defense, the district court first decides whether the

facts alleged in the complaint, assumed to be true, yield the conclusion that the defendant

is entitled to immunity.” As the Butler court noted, “[t]his is the analysis under Rule

12(b)(6) on a motion to dismiss.” Id. at 964; see also Wong v. INS, 373 F.3d 952, 957

(9th Cir. 2004) (noting that officials may “raise the qualified immunity defense

immediately, on a motion to dismiss the complaint, to protect against the burdens of

discovery”). If the trial court denies the motion to dismiss, the defendant may take an

immediate interlocutory appeal. Behrens v. Pelletier, 516 U.S. 299, 307 (1996). If not,

the trial court must permit plaintiff to take “enough discovery to permit the court to rule

on a defendant’s subsequent summary judgment motion.” Butler, 370 F.3d at 964. 

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1

Officer Cagle should not construe this court’s deadline for filing a motion to dismiss as

an invitation to file such a motion. The court expects counsel to use professional judgment in

deciding whether Officer Cagle can prevail on such a motion in light of the liberal standard

applicable to a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Wong v. INS, 373 F.3d

952, 957 (9th Cir. 2004) (“[W]hile government officials have the right . . . to raise and

immediately appeal the qualified immunity defense on a motion to dismiss, the exercise of that

authority is not a wise choice in every case.”).

ORDER – 4

These cases demonstrate that the assertion of qualified immunity is not an absolute

bar to discovery. Instead, it is a limitation on “burdens of broad-reaching discovery,”

Harlow, 457 U.S. at 818 (emphasis added), and a limitation that requires the defendant’s

active participation in asserting the defense. See Tubar v. Clift, No. C05-1154JCC, 2006

U.S. Dist. LEXIS 18500, at *6 (W.D. Wash. Mar. 2, 2006) (making same observation).

Officer Cagle has drifted off the course that courts have charted for defendants

who assert qualified immunity and seek to avoid discovery. He has not filed a motion to

dismiss. There is no indication that he intends to file a motion to dismiss, although he

could have done so at any time since Plaintiff sued in February. See, e.g., Anderson v.

Creighton, 483 U.S. 635, 646 (1987) (“[W]e have emphasized that qualified immunity

questions should be resolved at the earliest possible stage of a litigation.”) (emphasis

added). He asserts that he will move for summary judgment on qualified immunity

“within three weeks,” Defs.’ Opp’n at 1, but he does not acknowledge Ms. Hanigan’s

right to discovery in advance of such a motion. Moreover, he has delayed this action by

invoking the words “qualified immunity” without making any effort to establish that the

defense applies to him. Such conduct is consistent with an improper desire to delay this

action, rather than with a genuine desire to resolve the issue of qualified immunity.

 If Officer Cagle wishes to file a motion to dismiss on qualified immunity

grounds, he must do so no later than August 18, 2006. If he does so, the parties shall not

conduct further discovery in this matter until that motion is resolved.1

 If Officer Cagle

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The court notes that this discovery is potentially rather broad, as resolving the qualified

immunity question requires an inquiry into the facts giving rise to a plaintiff’s allegations. See

Saucier v. Katz, 533 U.S. 194, 199-201 (2001) (describing two-tiered inquiry necessary to

resolve summary judgment motion on qualified immunity).

ORDER – 5

does not file a motion to dismiss, the parties shall meet and confer no later than August

18, 2006 to discuss a briefing schedule for Officer Cagle’s summary judgment motion on

qualified immunity. The briefing schedule shall permit sufficient time for Ms. Hanigan to

receive responses to her discovery, although the parties shall cooperate in good faith to

limit her outstanding discovery so that it is no more intrusive than necessary to permit her

the opportunity to counter Officer Cagle’s assertion of qualified immunity.2

 If the parties

are unable to agree upon a briefing schedule, they may contact the court to request a

teleconference. 

As to Ms. Hanigan’s discovery propounded on the City, the parties concur that the

City is not entitled to qualified immunity. Defendants assert, however, that several of

Ms. Hanigan’s discovery requests to the City are, in reality, discovery requests

propounded on Officer Cagle. The court agrees. For example, Ms. Hanigan’s first

interrogatory asks that the City “describe in detail your entire conversation with Lisa

Hanigan and her husband at their home on August 22, 2003 . . . .” As Ms. Hanigan is

aware, the only person affiliated with the City who was present during this conversation

was Officer Cagle. The court need not decide if this request has marginal relevance to

Ms. Hanigan’s claims against the City. It finds that the request’s potential for subverting

the protections of qualified immunity greatly outweighs any relevance. The court

therefore holds that, pending the initial resolution of Officer Cagle’s qualified immunity

defense described above, the City need only respond to such discovery requests to the

extent that Officer Cagle would be obligated to respond if the requests were propounded

to him.

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Defendants filed two surreplies to the instant motion, both of which ignored this court’s

Local Rules. See Local Rules W.D. Wash. 7(g)(1) (requiring notice to the court before filing a

surreply). The court has not considered either surreply in deciding these motions. Further

violations of the Local Rules will result in sanctions.

ORDER – 6

Finally, the court turns to Ms. Hanigan’s request for attorneys’ fees. Although the

court has broad discretion under Fed. R. Civ. P. 37(a)(4) to award fees and expenses in

connection with discovery motions, the court finds that no award is appropriate here. The

court notes that both law firms involved in this action are frequently in precisely the

positions they find themselves here – representing clients who assert and oppose qualified

immunity defenses. It is therefore disappointing, to say the least, that counsel continue to

be unable to handle what should be, to them, the routine matter of coordinating discovery

pending an initial resolution of a qualified immunity defense. If there were evidence that

Plaintiff’s counsel had notified Officer Cagle of his obligation to bring a motion to

dismiss to avoid discovery, the court would consider sanctions against Officer Cagle. 

Absent such evidence, the court declines to decide, at this time, whether Plaintiff’s

counsel have conducted themselves more admirably than Defendants’ counsel. Both

counsel should strive to resolve such issues without involving the court. 

IV. CONCLUSION

 For the foregoing reasons, the court GRANTS in part and DENIES in part

Plaintiff’s motion to compel (Dkt. # 14).3

Dated this 11th day of August, 2006.

A 

JAMES L. ROBART

United States District Judge

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