English v. Dyke

• Decision Date: 13 May 1994
• Docket Number: No. 93-1531,93-1531
• Citation: 23 F.3d 1086
• Parties: John ENGLISH, Plaintiff-Appellee, v. Dennis DYKE; Terry Pitcher; Pamela Withrow; and Linda Flanagan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1086

23 F.3d 1086

John ENGLISH, Plaintiff-Appellee, v. Dennis DYKE; Terry Pitcher; Pamela Withrow; and Linda Flanagan, Defendants-Appellants.

No. 93-1531.

United States Court of Appeals Sixth Circuit.

Argued April 19, 1994.

Decided May 13, 1994.

Daniel E. Manville (argued and briefed), Detroit, MI, for plaintiff-appellee.

Linda M. Olivieri (argued and briefed), Office of the Atty. Gen., Corrections Div., Lansing, MI, for defendants-appellants.

Before: KENNEDY and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Defendants, prison officials at the Michigan Reformatory, appeal the District Court's order denying their post-answer motion to dismiss or for summary judgment based on qualified immunity. The District Court held that defendants waived their qualified immunity defense by failing to raise it in their pre-answer motion to dismiss or for summary judgment. Defendants argue on appeal that (1) the District Court erred in treating defendants' post-answer motion for summary judgment as a motion for reconsideration of the court's ruling on the pre-answer motion, and (2) the District Court erred in holding that defendants' failure to raise their qualified immunity defense in their pre-answer motion waived their right to assert the defense. For the following reasons, we reverse the judgment of the District Court and remand the case for the trial court to consider the merits of defendants' qualified immunity defense.

I.

Plaintiff John English, a prisoner at the Standish Maximum Facility ("SMF") in Michigan, brought this action under 42 U.S.C. Sec. 1983 against prison officials at the Michigan Reformatory ("MR") for alleged deprivation of civil rights without due process of law. During the week of November 16, 1990, there were several stabbings and assaults at MR resulting in injuries to a number of inmates. Prison officials believed plaintiff was a member of a gang suspected of perpetrating the violence. Officials issued a notice of intent to classify plaintiff to administrative segregation, security level VI, and placed him in temporary segregation pending an investigation and hearing concerning the notice of intent.

Plaintiff alleges that on November 16, 1990, without a hearing on the notice of intent, plaintiff was reclassified from security level IV to level V (maximum security) and, four days later, was transferred to SMF where he was placed in the general population. Plaintiff received no hearing with respect to his reclassification to security level V or his transfer to SMF. Defendant Warden Withrow at MR canceled the notice of intent to classify plaintiff to administrative segregation.

On May 13, 1991, plaintiff filed this pro se action alleging that his reclassification and transfer without a hearing deprived him of liberty without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution. On August 23, 1991, prior to filing an Answer, defendants filed a motion (hereinafter "pre-answer motion") to dismiss or for summary judgment on the ground that (1) plaintiff's vague and conclusory statements of conspiracy failed to state a cause of action, (2) a prisoner has no state-created liberty interest in a security classification, and (3) the Michigan Department of Corrections ("MDOC") did not require that plaintiff receive a hearing before transfer.

On January 16, 1992, the District Court denied defendants' motion. Thereafter, counsel was appointed who submitted various discovery requests.

On February 10, 1992, defendants filed an Answer to plaintiff's Complaint in which they raised the affirmative defense of qualified immunity. On October 1, 1992, before responding to any discovery requests, defendants filed a second motion (hereinafter "post-answer motion") to dismiss or for summary judgment. In this post-answer motion, defendants argued that (1) certain defendants should be dismissed for lack of personal involvement in the challenged actions, and (2) defendants are entitled to dismissal or judgment as a matter of law on the basis of qualified immunity.

On March 24, 1992, the District Court entered an order granting dismissal of certain defendants for lack of personal involvement and denying defendants' defense of qualified immunity. The court determined that defendants' arguments in the post-answer motion pertaining to qualified immunity were essentially the same as their arguments in the pre-answer motion and, therefore, the post-answer motion was really one for reconsideration of the court's ruling on the pre- answer motion. By local rule, motions for reconsideration must be filed within ten days of the order to be reconsidered. Because the motion was filed more than seven months after the court's original order, the court held, it was untimely and would not be considered. Furthermore, the court reasoned, because the qualified immunity defense was based on arguments raised in the pre-answer motion, that defense was available at the time the pre-answer motion was filed. Therefore, the court held, defendants' failure to include the defense of qualified immunity in the pre-answer motion operated as a waiver of that defense. Defendants appeal.

II.

Defendants first challenge the District Court's ruling that denied their qualified immunity defense on the ground that it was raised in an untimely motion for reconsideration. Defendants contend that the issue of qualified immunity, introduced in the post-answer motion, is distinct from the grounds for dismissal raised in the pre-answer motion, which did not mention qualified immunity, and therefore the post-answer motion was not redundant.

We have jurisdiction over this appeal because a denial of a motion for summary judgment based on qualified immunity is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). A district court may not avoid deciding a defense of qualified immunity by mischaracterizing the question before it. See Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987). Here, we are called on to decide whether the District Court had a proper basis for declining to consider defendants' qualified immunity defense. We conclude it did not. A comparison of the two motions filed in the District Court reveals that the post-answer motion was not one for reconsideration. The pre-answer motion sought dismissal for failure to state a claim on the ground that neither the Constitution nor the State of Michigan had conferred on plaintiff a protected liberty interest in his security classification. In the post-answer motion, defendants again argued that plaintiff had no protected liberty interest in his security classification. To that extent, the arguments advanced are similar, but the issues are not the same. The pre-answer motion asked the court to decide whether defendants' actions, as alleged in the Complaint, violated plaintiff's constitutional rights. The second motion, based on qualified immunity, asked the court to decide whether defendants' alleged actions violated plaintiff's rights under clearly established law. A decision in plaintiff's favor on the first question did not require a decision for plaintiff on the question of qualified immunity. Thus, a decision on the post-answer motion would not have been a redundant exercise. We conclude, therefore, that the District Court erred in treating defendants' post-answer motion as one for reconsideration and should instead have treated it as a motion for judgment on the pleadings or for summary judgment.

III.

Defendants also challenge the District Court's holding that defendants waived their qualified immunity defense by failing to raise it in their pre-answer motion to dismiss. Qualified immunity is an affirmative defense which must be affirmatively pleaded. Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). The defense protects a defendant from different and distinct burdens. It not only protects a defendant from liability but may also protect a defendant from the burdens of trial and discovery. Id. at 299. Thus, as this Circuit holds, a qualified immunity defense can be raised at various stages of the litigation including at the pleading stage in a motion to dismiss, after discovery in a motion for summary judgment, or as an affirmative defense at trial. Id. at 299-300. A denial of the defense at any stage entitles a defendant to an immediate appeal. If the trial court's ruling is affirmed on appeal, the defendant may raise the defense at the next stage of litigation and appeal again if the defense is denied. Id. While the issue is before the trial court or the case is on appeal, the trial court should stay discovery.

"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 defense is subject to the same procedural rules as other defenses. Id. Thus, as this Court recently held in an unpublished opinion, 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. Swart v. Pitcher, No. 92-2401, 1993 WL 406802 (6th Cir. Oct. 8, 1993) (unpublished opinion). In addition, a defendant may waive his right to appeal a denial of qualified immunity if he fails to file a timely appeal. Kennedy, 797 F.2d at 301. Moreover, the trial court has discretion to find a waiver if a defendant fails to assert the defense within 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. Kennedy, 797 F.2d at 300-301; see Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir.1991). Such a waiver, however, need not waive the defense for all purposes but would generally only waive the defense for the stage at which the defense should...