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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

POURYA MALEK,

Plaintiff,

v.

JEFFERY GREEN, et al.,

Defendants.

Case No. 17-cv-00263-BLF 

ORDER DENYING DEFENDANTS’

REQUEST TO STAY ALL DISCOVERY

Plaintiff Pourya Malek (“Malek”) brings this civil rights suit against Officers Green, 

Favela, and Sandri (collectively, the “Officers”) (together with Malek, the “Parties”) for violations 

of 42 U.S.C. § 1983 and various state law claims. The Officers filed a motion to dismiss in which 

they asserted qualified immunity with respect to five of Malek’s § 1983 claims including: (1) 

unlawful arrest; (2) unlawful entry into Malek’s home to arrest; (3) excessive force; (4) unlawful 

post-warrant search with respect to Officers Sandri and Favela; (5) retaliation. See generally ECF 

15. Following the hearing on the Officers’ motion to dismiss on August 31, 2017, the Parties filed 

supplemental briefing regarding the Officers’ insistence that they are immune from all discovery. 

See ECF 46, 47.1 On September 27, 2017, this Court granted in part with leave to amend and 

denied in part the Officers’ motion to dismiss the Complaint. ECF 49. The Court found that as 

currently pled, qualified immunity applies to the five § 1983 claims that the Officers moved to 

dismiss. The Court also dismissed Malek’s Bane Act claim and claim for false arrest and 

imprisonment under state law. Id. Malek was given leave to amend the complaint to plead 

additional facts to support the dismissed federal and state claims. Id. 

 

1

The Officers also have a pending motion for leave to file a noticed motion for a protective order 

before Magistrate Judge Howard R. Lloyd in this action. ECF 39. 
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United States District Court

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The Court construes the Officers’ supplemental brief on this matter as a renewed request to 

stay all discovery in this case pending the final resolution of their qualified immunity defense. 

The Court has considered the Parties’ briefing and the relevant authority on the issue. For the 

reasons that follow, the Officers’ request to stay all discovery is DENIED. 

The Court recognizes that “qualified immunity is an affirmative defense from suit, not 

merely from liability.” Doe By & Through Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1449–

50 (9th Cir. 1995). Thus, “[u]nless 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.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The 

Supreme Court has held that “[t]he basic thrust of the qualified-immunity doctrine is to free 

officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 685 (2009) (quotation omitted); see also Harlow v. Fitzgerald, 457 U.S. 

800, 818 (1982) (“Until this threshold immunity question is resolved, discovery should not be 

allowed”). However, while “[d]iscovery involving public officials is indeed one of the evils that 

Harlow aimed to address...neither that opinion nor subsequent decisions create an immunity from 

all discovery.” Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998). For example, the Supreme 

Court has recognized “that limited discovery, tailored to the issue of qualified immunity, will 

sometimes be necessary before a district court can resolve a motion for summary judgment.” Moss 

v. U.S. Secret Serv., 572 F.3d 962, 973 (9th Cir. 2009). 

Importantly, “the doctrine of qualified immunity does not shield defendants from state law 

claims.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013). Neither 

the Supreme Court nor the Ninth Circuit has addressed the impact of a discovery stay on a 

plaintiff’s assertion of parallel state law claims. In the absence of a mandatory stay, the Court 

retains “wide discretion in controlling discovery.” Little v. City of Seattle, 863 F.2d 681, 685 (9th 

Cir. 1988). The power of a district court to stay an action pending on its docket is “incidental to 

the power inherent in every court to control the disposition of the causes on its docket with 

economy of time and effort for itself, for counsel, and for litigants.” Landis v. North Am. Co., 299 

U.S. 248, 254 (1936). 
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United States District Court

Northern District of California

The Officers believe they are entitled to “immunity from all discovery.” See ECF 47. They 

argue that they should not be ordered to engage in any discovery, including meeting and 

conferring with Malek to develop a discovery schedule, until there is a final determination on their 

qualified immunity defenses. Id. ¶ 2. The law is not so broad such that an automatic stay of all 

discovery is warranted every time a defendant asserts qualified immunity with respect to certain 

claims in a lawsuit. The Officers point to no authority requiring the Court to stay all discovery in 

the circumstances here, where a federal claim and multiple state law claims have now ripened 

beyond the pleading stage. 

The Officers previously requested a stay of all discovery deadlines in this case. ECF 19. 

The Court denied the Officers’ motion because it was “unclear whether Defendants’ motion to 

dismiss will be dispositive of the entire case.” ECF 24. Indeed, the motion was not dispositive. 

See ECF 49. Certain claims have ripened, and the Court allowed Malek leave to amend the

federal and state law claims that were dismissed. Id. If a First Amended Complaint is filed, the 

Officers anticipate filing a further motion to dismiss based on qualified immunity. ECF 47, ¶ 8. 

Malek argues that discovery should proceed because Harlow only protects the Officers 

from “broad-reaching” discovery, and because qualified immunity does not shield defendants from 

state law claims. ECF 46. The Officers concede that neither the Supreme Court nor the Ninth 

Circuit has addressed whether a defendant’s assertion of qualified immunity with respect to 

federal claims also requires a discovery stay of parallel state law claims. ECF 47, ¶¶ 3, 5.

Nevertheless, the Officers advance the policy argument that if state claims are “intertwined with 

the same nucleus of operative fact” as the federal claims, all discovery should be stayed. Id. ¶ 4.

The Parties do not address the issue, noted in the Court’s Order on the motion to dismiss, 

that Malek’s Complaint also alleges a Fourth Amendment violation for an unreasonable search 

and seizure against Officer Green. The Officers did not move to dismiss the claims against 

Officer Green for judicial deception or for his responsibility for the execution of the search 

warrant. Therefore, the issue of qualified immunity on these federal claims was never before the 

Court. In fact, “qualified immunity is generally unavailable in a judicial deception case.” Ewing v. 

City of Stockton, 588 F.3d 1218, 1228 n.16 (9th Cir. 2009) (citing Branch v. Tunnell, 937 F.2d 
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1382, 1387 (9th Cir.1991) overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 

F.3d 1119 (9th Cir. 2002)). Thus, there is no basis to stay discovery concerning Officer Green’s 

alleged conduct related to his procurement and execution of the search warrant. 

As for the five § 1983 claims that the Court dismissed with leave to amend, the Court finds 

that discovery as to those claims should not move forward unless and until they ripen beyond the 

pleading stage. Harlow certainly supports the proposition that when a defendant asserts the 

qualified immunity defense against a claim for a constitutional violation, “discovery should not be 

allowed” until the threshold immunity question is resolved. 457 U.S. at 819. However, simply 

because discovery is appropriately stayed as to those claims currently subject to qualified 

immunity, nothing in Harlow or its progeny mandates that the Court stay “all discovery” in the 

case. Rather, the Supreme Court recognized that “[t]he Harlow right to immunity is a right to 

immunity from certain claims, not from litigation in general.” Behrens v. Pelletier, 516 U.S. 299, 

312 (1996) (emphasis in original).

The Officers argue that Malek’s “parallel state law claims do not change the analysis” 

regarding a stay of discovery as to federal claims. ECF 47. The Court disagrees. Malek asserted 

state law claims for a violation of the Bane Act, negligence, assault and battery, and false arrest or 

imprisonment. See generally Complaint, ECF 1 (“Compl.”). The Court dismissed the Bane Act 

claim, as well as the claim for false arrest or imprisonment because as pled, the Officers had 

probable cause to arrest Malek. See ECF 49. The Court did not dismiss Malek’s claims under 

state law for negligence and assault and battery, with the exception that Officers Sandri and Favela 

are entitled to statutory immunity for their conduct related to the execution of the search warrant. 

Although discovery on Malek’s negligence and assault and battery claim may overlap with the 

now dismissed excessive force claim, there is no requirement that the Court stay discovery on 

parallel state law claims.2 Indeed, the Officers acknowledge an absence of controlling authority 

on the issue, and instead cite to cases for the non-controversial position that some district courts 

 

2

The Court dismissed Malek’s excessive force claim under the second prong of qualified 

immunity. However, these allegations adequately pled state law claims for negligence and assault 

and battery. ECF 49. 
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exercise their inherent discretion differently than others. ECF 47, ¶¶ 3-4. As such, discovery shall

proceed with respect to the remaining state law claims. 

It is not in the interests of judicial economy, nor required by law, for the Court to stay all 

discovery and unnecessarily prolong this case. Malek has alleged federal claims against Officer 

Green for his procurement and execution of the search warrant, as well as state law claims against 

the Officers for negligence and assault and battery. Proceeding with discovery does not prejudice 

the Officers or “destroy” the benefit articulated in Harlow. 

The Parties are directed as follows:

(1) The Officers’ request to stay all discovery is DENIED;

(2) Discovery shall be stayed with respect to the claims that were dismissed in the 

Court’s September 27, 2017 Order;

(3) Discovery shall proceed with respect to the federal claims against Officer Green for 

his procurement and execution of the search warrant, as well as the surviving state 

law claims for negligence and assault and battery with the exception that Officer 

Favela and Officer Sandri are statutorily immune from liability for their execution 

of the search warrant;

(4) All further discovery disputes are properly directed to Judge Lloyd who has the 

authority to fashion protective orders as needed to protect the Parties in light of the 

circumstances of this case. 

(5) The Parties shall meet and confer to develop a pre-trial schedule including 

discovery deadlines and submit a proposed schedule to the Court on or before 

October 20, 2017. 

IT IS SO ORDERED.

Dated: September 29, 2017

______________________________________

BETH LABSON FREEMAN

United States District Judge