IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHRISTOPHER RUSANOWSKY, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-1132-K 

 § 

THE CITY OF DALLAS and SGT. § 

ROGER A. RUDLOFF, individually and § 

in his official capacity as a Dallas Police § 

Department Police Officer, § 

 § 

Defendants. § 

ORDER REQUIRING JOINT STATUS REPORT 

Plaintiff Christopher Rusanowsky has sued the City of Dallas and one of its 

police officers (Sgt. Roger A. Rudloff) alleging that the defendants violated his 

constitutional rights to record the police performing their duties in public, to not be 

detained without reasonable suspicion, and to not be subjected to warrantless arrest 

without probable cause. See Dkt. No. 1. Rudloff answered, asserting qualified 

immunity. See Dkt. No. 14, ¶ 2.4.1. 

The Court then entered an order setting out procedures to consider and resolve 

Rudolf’s entitlement to qualified immunity. See Dkt. No. 23. Under this order, 

Rusanowsky filed a reply under Federal Rule of Civil Procedure 7(a), see Dkt. No. 26; 

Rudloff noticed his intent to move for summary judgment on qualified immunity, see

Dkt. No. 27; Rusanowsky moved for leave to conduct limited discovery, see Dkt. No. 

30; and Rudloff responded to the motion for leave, see Dkt. No. 31. 

The Court has now referred the motion for leave to conduct limited discovery 

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to the undersigned United States magistrate judge for disposition under 28 U.S.C. § 

636(a). See Dkt. No. 32. 

After reviewing the motion for leave and its response, the undersigned will 

require that, after considering the legal standards set out below, the parties meet and 

confer in person or by videoconference regarding the proposed discovery requests by 

January 27, 2023 and then by February 3, 2023 file a joint status report that (1) 

sets out all discovery requests that they agree are authorized under the careful 

procedure the United States Court of Appeals for the Fifth Circuit requires before a 

district court may grant leave to conduct limited discovery that is narrowly tailored 

to uncover only facts that the district court needs to rule on a defendant’s entitlement 

to qualified immunity and (2), as to each discovery request that Rusanowsky still 

believes is authorized under the careful procedure, but which Rudolf believes is not, 

Rusanowsky may supplement his motion for leave to explain how that particular 

request is authorized, and Rudolf may supplement his response to provide his view 

as that particular request. 

“Because qualified immunity is an immunity from suit, not merely a defense to 

liability, ‘it is effectively lost if a case is erroneously permitted to go to trial.’” Ramirez 

v. Guadarrama, 3 F.4th 129, 134 (5th Cir. 2021) (per curiam) (quoting Mitchell v. 

Forsyth, 472 U.S. 511, 526 (1985)). So “a defendant’s entitlement to qualified 

immunity must be determined ‘at the earliest possible stage of the litigation.’” 

Carswell v. Camp, 54 F.4th 307, 310 (5th Cir. 2022) (quoting Ramirez, 3 F.4th at 133); 

see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly have stressed 

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the importance of resolving immunity questions at the earliest possible stage in 

litigation.”). 

And the established procedure under which courts must address qualified 

immunity, once asserted, therefore “prevents a defendant entitled to immunity from 

being compelled to bear the costs of discovery and other pre-trial burdens.” Ramirez, 

3 F.4th at 134 (citations omitted); see also Carswell, 54 F.4th at 310 (“[O]ne of the 

most important benefits of the qualified immunity defense is ‘protection from pretrial 

discovery, which is costly, time-consuming, and intrusive.’” (quoting Backe, 691 F.3d 

at 648; citation omitted)). 

Consequently, all discovery is typically stayed pending a ruling on a 

defendant’s entitlement to qualified immunity. See Wicks v. Miss. State Employment 

Servs., Inc., 41 F.3d 991, 994-95 (5th Cir. 1995); accord Zapata v. Melson, 750 F.3d 

481 (5th Cir. 2014); Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012); Lion Boulos v. 

Wilson, 834 F.2d 504 (5th Cir. 1987); Webb v. Livingston, 618 F. App’x 201 (5th Cir. 

2015) (per curiam). 

But, where a defendant asserts qualified immunity – but the Court is not 

currently considering a motion to dismiss the complaint (or or any portion of it) on 

that basis, see Carswell, 54 F.4th at 311-12 – the Court may, under certain 

circumstances, permit limited discovery that is narrowly tailored to uncover only 

facts that the Court needs to rule on the defendant’s entitlement to qualified 

immunity, see Wicks, 41 F.3d at 994; Backe, 691 F.3d at 648 (“[T]his court has 

established a careful procedure under which a district court may defer its qualified 

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immunity ruling if further factual development is necessary to ascertain the 

availability of that defense.”). 

Fundamental to this careful procedure is that, regardless how asserted, once 

qualified immunity is asserted in good faith, “the burden is on the plaintiff to 

demonstrate [its] inapplicability.” McClendon v. City of Columbia, 305 F.3d 314, 323 

(5th Cir. 2002) (en banc); see also Joseph v. Bartlett, 981 F.3d 319, 329-30 (5th Cir. 

2020) (“When a public official makes ‘a good-faith assertion of qualified immunity,’ 

that ‘alters the usual summary-judgment burden of proof, shifting it to the plaintiff 

to show that the defense is not available.’” (quoting Orr v. Copeland, 844 F.3d 484, 

490 (5th Cir. 2016))). 

Zapata articulates the steps a district court must take in an order 

authorizing limited qualified immunity discovery – to avoid entering an 

order that would deny the defendant the benefits of the defense. The 

first step of this procedure requires the Court to find that the complaint 

alleges facts sufficient to overcome qualified immunity. At the second 

step, the Court must “identify any questions of fact it need[s] to resolve 

before it would be able to determine whether the defendants [are] 

entitled to qualified immunity.” And the third step requires an 

examination of the specific discovery requests. 

Roe v. Johnson Cnty., Tex., No. 3:18-cv-2497-B-BN, 2021 WL 321967, at *2 (N.D. Tex. 

Feb. 1, 2021) (quoting Zapata, 750 F.3d at 485; citation omitted). 

Put another way, at the first step, “a plaintiff seeking to overcome QI must 

assert facts that, if true, would overcome that defense. It is not enough broadly to 

seek information that might impeach the defendants’ version of events.” Hutcheson 

v. Dall. Cnty., Tex., 994 F.3d 477, 481 (5th Cir. 2021) (citing Zapata, 750 F.3d at 481). 

So, at step one, the plaintiff must convince the Court that the pleadings, “taken as 

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true, overc[o]me the qualified immunity defense” because, before authorizing limited 

discovery, “this holding must be made explicitly” by the district court. Zanitz v. Seal, 

602 F. App’x 154, 163 (5th Cir. 2015) (per curiam) (citing Zapata, 750 F.3d at 485 

n.2). Accordingly, the functional equivalent of carrying the step-one burden would be 

for a plaintiff’s pleadings to demonstrate that a motion to dismiss based on qualified 

immunity should be denied. See id. at 163 n.8. 

But, even if the Court holds that sufficient facts have been alleged, a plaintiff 

will still falter at step two by “fail[ing] to identify any question of fact that the court 

must resolve before determining QI.” Hutcheson, 994 F.3d at 481 (citing Backe, 691 

F.3d at 648); see also Zanitz, 602 F. App’x at 163 (“Even a ‘limited discovery’ order 

does not satisfy the second step if ‘the district court [does] not identify any questions 

of fact it need[s] to resolve before it would be able to determine whether the 

defendants [are] entitled to immunity.’” (citing Zapata, 750 F.3d at 484-85)). 

Only after a plaintiff passes through these two gates will the Court examine 

the specific discovery requests proposed to determine if any are narrowly tailored. 

See, e.g., Webb, 618 F. App’x at 209-11; see also Carswell, 54 F.4th at 311 (explaining 

that the purpose of the careful procedure “is only to allow the district court to rule on 

the defendant’s assertion of QI; its purpose is not to provide a backdoor for plaintiffs 

to circumvent the defendant’s immunity from suit” and that “where the QI-asserting 

official determines that any pre-ruling discovery sought or ordered in the district 

court crosses the line from permissible Lion Boulous discovery to impermissible 

vitiation of the official’s immunity from suit, the collateral order doctrine authorizes 

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an immediate appeal” (citations omitted)).1

SO ORDERED. 

DATED: December 28, 2022 

 ________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE 

1 Cf. Webb, 618 F. App’x at 210 (Contrary to the general rule, “’immediate 

appeal is available for [qualified immunity] discovery orders which are either 

avoidable or overly broad.’ [But a] district court’s discovery order is neither 

avoidable nor overly broad, and therefore not immediately appealable, when: (1) the 

defendant’s entitlement to immunity turns at least partially on a factual question; 

(2) the district court is unable to rule on the immunity defense without clarification 

of these facts; and (3) the discovery order is narrowly tailored to uncover only the 

facts necessary to rule on the immunity defense.” (quoting Gaines v. Davis, 928 F.2d 

705, 707 (5th Cir. 1991), then citing Lion Boulos, 834 F.2d at 507-08)). 

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