IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02343-MSK-MEH

CHERYL ARABALO,

Plaintiff,

v.

CITY OF DENVER, COUNTY OF DENVER, through its elected officials, the Denver City

Council,

ASHLEY KILROY, in his official capacity as Acting Safety Manager for the City and County of

Denver, 

CAPTAIN GUTIERREZ, and

PHILLIP DEEDS, 

Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.

Pending before the Court is Defendant Captain Gutierrez’s Motion to Stay Proceedings [filed

November 28, 2012; docket #113]. Plaintiff filed a response on December 19, 2012 [docket #123].

Pursuant to D. C. Colo. LCivR 7.1C, the Court decides the motion without a reply from Captain

Gutierrez. For the reasons set forth below, Captain Gutierrez’s Motion to Stay Proceedings is

GRANTED IN PART and DENIED IN PART as follows. 

I. Background

Plaintiff initiated this action on September 6, 2011, alleging sexual harassment, sex

discrimination, and retaliation by the Denver Sheriff’s Department and several of its officers.

Attorney Samuel Trapp represented Plaintiff initially. During Mr. Trapp’s representation of

Plaintiff, Plaintiff obtained discovery from Defendants through interrogatories and requests for

production. Following a dispute related to Plaintiff’s deposition, Plaintiff terminated Mr. Trapp on

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September 26, 2012, and hired Samantha Halliburton to represent her in this action. 

Shortly after retaining Ms. Halliburton, Plaintiff moved to reopen discovery and to file a

third amended complaint. At a hearing on Plaintiff’s motions, the Court observed that the proposed

third amended pleading contained several contradictory assertions and that it would not be accepted

as filed. Although the Court ultimately granted Plaintiff leave to amend, it cautioned Plaintiff that

asserting claims against Captain Gutierrez in his individual capacity would likely precipitate a

motion to dismiss and corresponding motion to stay. The Court’s prediction was correct. 

Plaintiff filed her third amended complaint on November 14, 2012, asserting among other

claims, a Section 1983 claim for violations of the Fourteenth Amendment against Captain Gutierrez

in his individual and official capacities and two tort claims against Captain Gutierrez in his

individual capacity. (See docket #109, 18-20.) Captain Gutierrez responded by filing a motion to

dismiss on November 27, 2012. (Docket #112.) In his motion, Captain Gutierrez asserts an

entitlement to qualified immunity with regard to Plaintiff’s constitutional claim and immunity under

the Colorado Governmental Immunity Act (“CGIA”) regarding Plaintiff’s tort claims. Concurrently

with the motion to dismiss, Captain Gutierrez filed the pending motion to stay. Captain Gutierrez

asks the Court to stay all proceedings pending the Court’s resolution of his motion to dismiss. 

II. Discussion

The Court’s discretion to stay proceedings arises from its power to control its own docket.

See Clinton v. Jones, 520 U.S. 681, 706-07 (1997) (citing Landis v. North American Co., 299 U.S.

248, 254 (1936)). Legal questions regarding the court’s subject matter jurisdiction should be

resolved as early as possible in the litigation, before incurring the burdens of discovery. See Behrens

v. Pelletier, 516 U.S. 299, 308 & 310 (1996) (noting that discovery can be particularly disruptive

when a dispositive motion regarding immunity is pending); Moore v. Busby, 92 F. App'x 699, 702

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(10th Cir. 2004) (affirming trial court's stay of discovery pending resolution of absolute immunity

question); Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (“the Supreme Court has

repeatedly ‘stressed the importance of resolving immunity questions at the earliest possible stage

in litigation.’” (citation omitted)). 

The Supreme Court established that evaluating the defense of qualified immunity is a

threshold issue, and “[u]ntil this threshold immunity question is resolved, discovery should not be

allowed.” Siegert v. Gilley, 500 U.S. 226, 233 (1991) (citing Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992) (same). However, the defense

of qualified immunity “is not a bar to all discovery.” Rome v. Romero, 225 F.R.D. 640, 643 (D.

Colo. 2004). There are certain circumstances when discovery is permissible despite an assertion of

qualified immunity, including cases alleging official-capacity claims, requests for injunctive (as

opposed to monetary) relief, and claims against entities, not individuals. See Rome, 225 F.R.D. at

643. Additionally, permitting discovery up until the point that qualified immunity is raised may be

appropriate, particularly when the defense is not advanced until the filing of a motion for summary

judgment. Id. at 643-44. 

In addition to the constitutional protections of qualified immunity, government officials

asserting immunity under the CGIA are also entitled to a stay of discovery. See Rooker v. Ouray

Cnty, 841 F. Supp. 2d (D. Colo. 2012) (finding that “discovery must be stayed” pending the

resolution of immunity questions under the CGIA). Captain Gutierrez seeks a stay of discovery on

both grounds. 

Plaintiff’s response to the pending motion argues that Plaintiff should be given an

opportunity to conduct discovery with regard to Captain Gutierrez’s assertion of immunity.

However, the Court observes that Plaintiff has already had ample time and opportunity to conduct

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The Court acknowledges that Plaintiff also sues Captain Gutierrez in his official capacity

under Section 1983. However, this does not negate the individual-capacity claim on the same basis.

 

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discovery with respect to Captain Gutierrez prior to filing her third amended pleading. Additionally,

Plaintiff has already filed a her response to the pending motion to dismiss. In the Court’s view,

additional discovery regarding the immunity questions is unwarranted. 

 Comparing the facts of this case with the considerations set forth in Rome, the Court finds

that Captain Gutierrez should be relieved of his discovery obligations pending the resolution of his

motion to dismiss. Each of Plaintiff’s claims against Defendant Gutierrez alleges conduct in his

individual capacity for which Plaintiff seeks monetary damages rather than injunctive relief.1

Additionally, Captain Gutierrez raised his respective immunity defenses in a motion to dismiss,

rather than at the summary judgment phase. 

Although the Court finds that Captain Gutierrez is entitled to a stay of all discovery, no other

Defendant has either requested a stay or asserted qualified immunity. The Court also notes that

Captain Gutierrez’s motion to dismiss, if granted, would not dispose of the entire action. Plaintiff’s

need to conduct discovery with respect to the other Defendants remains the same regardless of

whether Captain Gutierrez is dismissed. Therefore, the Court finds that a stay of all proceedings

is not warranted, and that Plaintiff must be permitted to continue with discovery regarding all

Defendants except for Captain Gutierrez. 

III. Conclusion

For the reasons stated above, the Court finds that Captain Gutierrez is entitled to stay of

discovery. However, this stay does not apply to the remaining Defendants. Therefore, Defendant

Captain Gutierrez’s Motion to Stay Proceedings [filed November 28, 2012; docket #113] is

GRANTED IN PART and DENIED IN PART as described in this order. 

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Dated at Denver, Colorado, this 27th day of December, 2012.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

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