Lucero v. City of Aurora et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-00851-GPG-SBP
ELIZA LUCERO,
Plaintiff,
v.
CITY OF AURORA and
ANDREW SILBERMAN, Aurora Police Department Detective, in his individual capacity,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO STAY DISCOVERY AND
DENYING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
Susan Prose, United States Magistrate Judge
This matter comes before this court on Defendants’ Joint Motion to Stay Discovery and
Vacate Scheduling Conference (“Motion” or “Motion to Stay”), filed July 25, 2023. ECF No. 36.
The undersigned Magistrate Judge considers the Motion pursuant to 28 U.S.C.
§ 636(b)(1)(A) and the Memorandum dated August 25, 2023. ECF No. 45. This court has
carefully considered the Motion and related briefing, the entire case file, and the applicable case
law, and it has determined that oral argument would not materially assist in the disposition of the
Motion. For the following reasons, this court GRANTS the Motion. Given this disposition of the
Motion to Stay, Defendants’ related Joint Motion for Protective Order from Undue Burden and
Expense, ECF No. 38, is DENIED AS MOOT.
BACKGROUND
The action arises out of Plaintiff Eliza Lucero’s arrest in connection with protest
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activities in which she engaged on July 3, 2020, outside an Aurora, Colorado, police station. First
Amended Complaint (“Compl.”), ECF No. 23 ¶¶ 40-50. According to Ms. Lucero, Defendant
Andrew Silberman, a detective with the Aurora Police Department, led the investigation of the
July 3, 2020 incident. Id. ¶ 8. Mr. Silberman presented an affidavit in support of the arrest of Ms.
Lucero, which she contends omitted salient facts and exculpatory information and contained
“concocted charges.” Id. ¶¶ 9-10, 107-116. Ms. Lucero further alleges that the manner of her
arrest was calculated to “inflict[] the maximum amount of pain possible,” id. ¶ 93, including
unnecessarily exposing her to the COVID-19 virus in a Denver detention center when her
charges arose out of Adams County. See generally id. ¶¶ 83-106. Ms. Lucero further asserts that
Mr. Silberman perjured himself at a preliminary hearing in her case. Id. ¶¶ 117-121. A court
ultimately found no probable cause for some of the charges that were brought against Ms.
Lucero, and the prosecution subsequently dismissed the remaining charges. Id. ¶¶ 11-12, 125-
127.
Based on these allegations, Ms. Lucero raises two claims in this lawsuit. The first is a
Fourth Amendment claim against Mr. Silberman and the City of Aurora (“City”), 1 alleging
malicious prosecution pursuant to 42 U.S.C. § 1983. Id. ¶¶ 159-168. The second is a malicious
prosecution claim against Mr. Silberman under a Colorado statute, the Enhance Law
Enforcement Integrity Act (“ELEIA”), Colo. Rev. Stat. § 13-21-131, which created a cause of
action for individuals whose rights are secured by Article II of the Colorado Constitution (i.e.,
1 Ms. Lucero’s alleges that the basis for her Monell claim is that the City is “responsible for
Detective Silberman’s conduct because Aurora reviewed and approved it every step of the way.”
Compl. at 25 and ¶¶ 143-151.
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the Colorado Constitution’s Bill of Rights). Id. ¶¶ 152-158.
On July 24, 2023, Mr. Silberman and the City separately moved to dismiss all claims
against them. ECF No. 31; ECF No. 34.2 The motions to dismiss, which are fully briefed, see
ECF Nos. 42, 43, 46, 47, are not referred to this court. Mr. Silberman argues that the claims
against him should be dismissed because Ms. Lucero has failed to plausibly allege the elements
of malicious prosecution, whether under Section 1983 or ELEIA. ECF No. 31 at 4-12. Mr.
Silberman contends that, with regard to the Section 1983 claim, he is entitled to qualified
immunity and, to the extent the claim implicates his testimony in a preliminary hearing, absolute
immunity. Id. at 9-10, 12-13. Alternatively, if the district judge does not address “the plausibility
of an underlying civil rights violation” in the court’s eventual order on the motion to dismiss, Mr.
Silberman argues that the court should decline to exercise supplemental jurisdiction over the
ELEIA claim. Id. at 13 n.4. The City argues that the Monell claim should be dismissed because
Ms. Lucero’s allegations fall short of plausibly establishing an entitlement to relief. ECF No. 34
at 4-12.
On July 25, 2023, the day after Defendants filed their motions to dismiss, they filed the
instant Motion to Stay, which seeks a stay of all discovery pending resolution of both motions to
dismiss. ECF No. 36. Ms. Lucero has responded to the Motion to Stay, ECF No. 44 (“Resp.”),
and Defendants have filed a reply. ECF No. 48. Ms. Lucero urges that “[d]iscovery should . . .
2 Ms. Lucero asserts that the motions would not “dispose of the lawsuit in its entirety,” ECF No.
44 at 15 n.1, but it appears otherwise to the court, given that both Defendants argue that all
claims against them should be dismissed. Ms. Lucero may mean to say that she believes the
motions are unlikely to succeed. Regardless, the court construes the motions as collectively
seeking a complete dismissal of the action.
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proceed concerning all Defendants without further delay.” Resp. at 5 (emphasis added).
Notwithstanding the pending Motion to Stay, Ms. Lucero seeks from Defendants initial
disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) and demands responses to
written discovery requests she has issued—actions which prompted Defendants to file the
document entitled “Joint Motion for Protective Order from Undue Burden and Expense,” ECF
No. 38 (“Motion for Protective Order”). Ms. Lucero’s position is that “a motion to stay all
discovery does not create an automatic stay of discovery during the period of time between when
the motion is filed and when the court rules.” Response, Motion for Protective Order, ECF No.
40 at 2 (discussing D.C.COLO.LCivR 30.2(a)). Defendants filed a reply in support of the Motion
for Protective Order. ECF No. 41. They argue inter alia that Ms. Lucero conflates the Motion to
Stay and Motion for Protective Order.
LEGAL STANDARDS
While the Federal Rules of Civil Procedure do not expressly provide for a stay of
proceedings while a motion to dismiss is pending, Rule 26(c) does permit the court, upon a
showing of good cause, “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). Further, “[t]he power to stay
proceedings 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.
How this can best be done calls for the exercise of judgment, which must weigh competing
interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)
(citing Kan. City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)).
While staying discovery pending a ruling on a motion to dismiss is generally disfavored
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in this District, see, e.g., Chavez v. Young Am. Ins. Co., No. 06-cv-02419-PSF-BNB, 2007 WL
683973, at *2 (D. Colo. Mar. 2, 2007), this is not a hard and fast rule. “[G]ood cause may exist to
stay discovery if a dispositive motion has been filed that could resolve the case and a stay does
not unduly prejudice the opposing party,” Namoko v. Milgard Mfg., Inc., No. 06-cv-02031-
WDM-MEH, 2007 WL 1063564, at *1 (D. Colo. Apr. 6, 2007). And certain questions—
including questions of immunity and jurisdiction—should be resolved at the earliest stages of
litigation and present compelling grounds for a stay. See, e.g., 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 (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) (“[T]he Supreme Court has
repeatedly ‘stressed the importance of resolving immunity questions at the earliest possible stage
in litigation.’” (citation omitted)); Colorado Springs Fellowship Church v. Williams, No. 19-cv-
02024-WJM-KMT, 2020 WL 6487420, at *2 (D. Colo. Nov. 3, 2020) (same) (collecting cases);
Clarendon Nat’l Ins. Co. v. Glickauf, No. 18-cv-02549-CMA-NYW, 2019 WL 1897845, at *2
(D. Colo. Feb. 14, 2019) (recognizing that courts in this District “may be more inclined to stay
discovery pending the resolution of a Motion to Dismiss impacting immunity or jurisdictional
issues”); Gilbert v. United States Olympic Comm., No. 18-cv-00891-CMA-MEH, 2018 WL
11189646, at *3 (D. Colo. Nov. 27, 2018) (“issue of absolute immunity must be resolved before
[defendant] bears the burdens of discovery”).
In evaluating whether a stay is warranted, the court may also consider the plaintiff’s
interests in proceeding expeditiously with the civil action and the potential prejudice to the
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plaintiff of a delay, the burden on the defendants, and the convenience to the court. String
Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv-01934-LTB-PAC, 2006 WL 894955, at
*2 (D. Colo. Mar. 30, 2006). In the end, the decision to stay discovery rests firmly in the sound
discretion of the trial court. See Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990).
ANALYSIS
I. 	Mr. Silberman’s Assertion of Absolute and Qualified Immunity
Mr. Silberman asserts that he is entitled qualified immunity as to Ms. Lucero’s malicious
prosecution claim under Section 1983 and that, insofar as that claim is based on testimony that
he provided in a preliminary hearing, he is also entitled to absolute immunity. See Motion to Stay
at 2. While these immunity protections are not dispositive of the Monell claim against the City or
the state law claim against Mr. Silberman claim under ELEIA,3 the court finds that Mr.
Silberman’s invocation of immunity warrants a complete stay of discovery until the district court
rules on the pending motions to dismiss.4 The court therefore begins by explaining its reasoning
on this point.
3 Qualified immunity is not a defense to liability under ELEIA. See Colo. Rev. Stat. § 13-21-
131(2)(b).
4 The court assumes that Mr. Silberman’s and the City’s separate motions will be decided
simultaneously, but it is the resolution of Mr. Silberman’s motion, which raises immunity
defenses (that are intertwined with discovery generally), that is most pertinent to the court’s
evaluation of the stay question. Cf. Boden v. Hmshost Corp., No. 15-cv-00606-CMA-KMT, 2015
WL 3826725, at *2 (D. Colo. June 19, 2015) (“Defendants do not maintain that the court lacks
jurisdiction over Plaintiffs’ claim or that they are entitled to immunity therefrom—rather it [sic]
simply moves to dismiss Plaintiffs’ Amended Complaint as time-barred pursuant to Rule
12(b)(6). Granting a stay under these circumstances would suggest that a stay of discovery is
appropriate nearly any time a defendant files a motion to dismiss.”).
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“The Supreme Court has emphasized the broad protection absolute and qualified
immunity affords, giving officials ‘a right, not merely to avoid ‘standing trial,’ but also to avoid
the burdens of such pretrial matters as discovery.’” Lanier v. Sylvester, No. 08-cv-00386-WYD-
MEH, 2008 WL 2266287, at *1 (D. Colo. June 3, 2008) (staying discovery pending resolution of
motion to dismiss raising absolute immunity defense) (quoting Behrens, 516 U.S. at 308).
Immunity provisions, whether absolute or qualified, serve to spare officials from unwarranted
liability as well as “demands customarily imposed upon those defending a long drawn out
lawsuit,” and are “effectively lost if a case is erroneously permitted to go to trial.” Siegert v.
Gilley, 500 U.S. 226, 232-33 (1991) (quoting in part Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). See also Martin v. Cnty. of Santa Fe, 626 F. App’x 736, 740 (10th Cir. 2015)
(recognizing that, where qualified immunity is asserted, “[e]ven such pretrial matters as
discovery are to be avoided if possible, as inquiries of this kind can be peculiarly disruptive of
effective government”) (quoting Jiron v. City of Lakewood, 392 F.3d 410, 414 (10th Cir. 2004)
(emphasis in original).
Qualified immunity, no less than absolute immunity, invokes the protection to be free
from discovery: “Until this threshold immunity question is resolved, discovery should not be
allowed.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added); see also Mitchell,
472 U.S. at 526 (same). Indeed, “[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). In Iqbal, the Supreme Court made clear that discovery must
be stayed upon assertion of qualified immunity, even if there are claims (or defendants) that are
not subject to a qualified immunity defense; otherwise, the defense is lost:
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It is no answer to these concerns to say that discovery for petitioners can be deferred
while pretrial proceedings continue for other defendants. It is quite likely that, when
discovery as to the other parties proceeds, it would prove necessary for petitioners
and their counsel to participate in the process to ensure the case does not develop
in a misleading or slanted way that causes prejudice to their position. Even if
petitioners are not yet themselves subject to discovery orders, then, they would not
be free from the burdens of discovery.
Id. at 685-86.5 Just so here. If discovery were to proceed only against the City on the Monell
claim, for example, Mr. Silberman’s alleged conduct would remain front and center. He will
certainly be deposed and, as shown in the written discovery Ms. Lucero has already sought to
propound, his actions will be the object of information specifically requested of the City. See
ECF No. 36-1 at 9, 13-14 (reflecting at least one interrogatory and three requests for production
of documents directed to the City but specifically concerning Silberman).
Ms. Lucero would have this court distinguish Iqbal because the Supreme Court there was
addressing an “international security emergency.” See Resp. at 6 (quoting Iqbal, 556 U.S. at
685). True enough, but nothing in Iqbal purports to confine the Supreme Court’s analysis of
qualified immunity, and the “avoidance of disruptive” discovery, to high-level government
officials operating in the arena of national security. While “[t]he costs of diversion [from
participating in discovery by persons raising qualified immunity]” are “magnified” in such a
context, id. (emphasis added), the disruption attendant on discovery applies equally to every
“Government official,” including those whose daily work takes place in smaller realms:
5 In light of this explicit language, this court respectfully disagrees with Ms. Lucero’s assertion
that “Iqbal never addresses the issue of whether a stay of discovery, if granted while a motion to
dismiss based on qualified immunity is pending, should be extended to all defendants and claims
in the case.” Resp. at 7.
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If a Government official is to devote time to his or her duties, and to the formulation
of sound and responsible policies, it is counterproductive to require the substantial
diversion that is attendant to participating in litigation and making informed
decisions as to how it should proceed. Litigation, though necessary to ensure that
officials comply with the law, exacts heavy costs in terms of efficiency and
expenditure of valuable time and resources that might otherwise be directed to the
proper execution of the work of the Government.
Id. Nor do all of the Supreme Court cases predating Iqbal—which recognize that qualified
immunity should be resolved at the “earliest possible stage in litigation” and that the “thrust of
the qualified-immunity doctrine is to free officials from . . . ‘disruptive discovery’” until
threshold immunity questions are resolved—arise in the national security realm. See, e.g.,
Siegert, 500 U.S. at 228 (qualified immunity defense raised by former supervisor who wrote
defamatory letter about government clinical psychologist); Pearson v. Callahan, 555 U.S. 223,
227 (2009) (qualified immunity defense raised by state law enforcement officers who conducted
warrantless search of house incident to an arrest for sale of methamphetamine); Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987) (holding, in evaluating qualified immunity defense
raised by FBI agent who conducted warrantless search of home, that “on remand, it should first
be determined whether the actions the Creightons allege Anderson to have taken are actions that
a reasonable officer could have believed lawful. If they are, then Anderson is entitled to
dismissal prior to discovery.”) (emphasis added).6
6 Neither does the court find it logical to adopt a rule revising the assessment of qualified
immunity, with its associated protections, based on some perceived difference in the importance
of the specific issue at stake or the titles of the persons raising the defense. After all, though
promulgated only by a local government, the alleged City policy at issue here is claimed to have
had grave consequences for Ms. Lucero. If she prevails, Mr. Silberman also will be deeply
affected.
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This court is not inclined to dismiss as mere “dicta” the Supreme Court’s clear statements
regarding discovery in the qualified immunity context, as Ms. Lucero urges. See Resp. at 6. But
even if the language in Iqbal were properly characterized in that manner, this court would be
“bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings, particularly
when the dicta is recent and not enfeebled by later statements.” Indep. Inst. v. Williams, 812 F.3d
787, 798 n.13 (10th Cir. 2016) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.
1996)). See also United States v. Wing, No. 16-cv-1219-WJM, 06-cr-226-WJM-1, 2016 WL
6803695, at *5 (D. Colo. Nov. 17, 2016) (“Supreme Court dicta binds this Court ‘almost as
firmly as . . . the Court’s outright holdings’”) (quoting Surefoot LC v. Sure Foot Corp., 531 F.3d
1236, 1243 (10th Cir. 2008)).
This court discerns no justification for ignoring the clear language in Iqbal, and the
Supreme Court precedent predating it, which directs that discovery should not proceed until
threshold immunity questions are resolved even if not every claim or defendant raises an
immunity defense. The court notes that every case on which Ms. Lucero argues for the contrary
proposition either predates Iqbal or relies specifically on Rome v. Romero, 225 F.R.D. 640 (D.
Colo. 2004), a case that itself predates Iqbal by some five years. See Resp. at 2-5, 7 n.2 (citing
cases). Based on these cases, Ms. Lucero asserts that “the District of Colorado holds” that an
assertion of qualified immunity by one defendant does not justify a limited stay of all discovery,
id. at 1 (emphasis added), but this court respectfully finds that Ms. Lucero overstates her point.
Recently, the Chief Judge of this court rejected a plaintiff’s “reliance on Rome and
Kaufman v. Univ. of Colo., No. 15-cv-00406-LTB-NYW, 2015 WL 4748987 (D. Colo. Aug. 12,
2015)”—another case on which Ms. Lucero heavily relies, see Resp. at 2-4, 6—as “unavailing.”
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Cook v. Whyde, No. 20-cv-02912-PAB-STV, 2021 WL 981308, at *2 (D. Colo. Mar. 15, 2021).
In upholding the recommendation of Magistrate Judge Varholak to stay discovery where an
individual defendant raised qualified immunity, but two defendants did not, the court emphasized
that Rome and Kaufman did not compel a contrary result:
While Rome states that asserting qualified immunity does [not]7 automatically bar
all discovery, it provides little discussion of the sorts of prejudice concerns that are
present here if discovery proceeds as to some but not all defendants. Rome also pre-
dates String Cheese and is therefore less persuasive, given the importance of String
Cheese to courts in this district. As to Kaufman, which relied on Rome, the court
weighed the String Cheese factors and determined that a stay was not warranted.
Moreover, both cases pre-date the Supreme Court’s decision in Ashcroft v. Iqbal,
556 U.S. 662 (2009), in which the Court considered a discovery stay when the issue
of qualified immunity was raised. In Iqbal, the Court stated, “[t]he basic thrust of
the qualified-immunity doctrine is to free officials from the concerns of litigation,
including avoidance of disruptive discovery.” Id. at 685 (internal citation omitted).
Id. (further noting that Iqbal rejected the idea “that discovery for petitioners can be deferred
while pretrial proceedings continue for other defendants,” given that “[i]t is quite likely that,
when discovery as to the other parties proceeds, it would prove necessary for petitioners and
their counsel to participate in the process to ensure the case does not develop in a misleading or
slanted way that causes prejudice to their position”).
This court agrees with Cook and finds that it reflects a proper application of Supreme
Court precedent on the immunity/discovery question. Neither the court in Rome nor the court in
String Cheese was able to consider Iqbal, in which the Supreme Court recognized that the
intertwined positions of multiple defendants can jeopardize the right to avoid discovery of an
7 This word appears to have been omitted in the Westlaw version of the order in Cook.
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individual defendant who asserts qualified immunity. Importantly, too, the court in Rome was
forced to navigate the stay question in an unusual procedural posture: where an official delayed
his assertion of qualified immunity until the summary judgment stage of the case. As the court in
Rome observed: “Because the official controls when the issue is presented for adjudication, he
cannot be said to be unduly burdened if he foregoes an opportunity to address the issue prior to
the commencement of discovery, and instead waits to assert it until some point later in the
litigation. In such circumstances, it may be appropriate to stay discovery only after the official
presents the issue, and to require responses to existing discovery requests.” 225 F.R.D. at 644
(emphasis in original).
Too, things have changed since Iqbal. As one court has put it in characterizing Rome as a
“non-binding, pre-Iqbal decision[]”:
Before Iqbal, it was somewhat unsettled among courts whether and under what
circumstances discovery should be stayed on the basis of a qualified immunity
assertion. For instance, there was a long-standing question as to the proper scope
of a discovery stay when only certain defendants were entitled to assert a qualified
immunity defense and others were not. See, e.g., Rome, 225 F.R.D. at 644
(determining that discovery could proceed as to those defendants who could not
assert qualified immunity). However, after Iqbal, the law is clear that discovery
should be stayed upon assertion of qualified immunity, even for those defendants
not asserting the defense. Iqbal, 556 U.S. at 685.
Tenorio v. Pitzer, No. CIV 12-1295 MCA/KBM, 2013 WL 12178001, at *3 (D.N.M. July 27,
2013).
In light of the directives by the Supreme Court in Iqbal and cases preceding it, that
discovery be stayed upon the assertion of qualified immunity, this court concludes that Mr.
Silberman is entitled to a determination of the questions of absolute and qualified immunity
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before assuming the burdens of discovery and litigation. Accord, e.g., Jiron, 392 F.3d at 414
(reasoning that because qualified immunity is an entitlement not to face the burdens of litigation,
“[e]ven pretrial matters such as discovery are to be avoided if possible”); Workman v. Jordan,
958 F.2d 332, 336 (10th Cir. 1992) (concluding that discovery “should not be allowed “ until the
court makes a requested qualified immunity determination) (citing Siegert). In accordance with
Iqbal, the court finds that discovery here—discovery inextricably intertwined with Mr.
Silberman’s alleged conduct, whether the claim is brought against Mr. Silberman personally or
the City—should be stayed. See Iqbal, 556 U.S. at 685-86.8
II. 	The String Cheese Analysis
The court’s analysis can end here, but to ensure a thorough and careful review of the
issue from all angles, the court deems it appropriate also to address the String Cheese factors and
to explain why the balance of these factors also weighs in favor of a stay until Mr. Silberman’s
motion to dismiss is resolved.
A. 	Plaintiff’s Proposal for a “Modified” String Cheese Test
As an initial matter, the court considers Ms. Lucero’s argument for a “modified” String
Cheese analysis, in which this court would take a “preliminary peek” at the merits of the pending
motions to dismiss and “consider the likelihood of success” of that dispositive motion. Resp. at
7-9. More specifically, Ms. Lucero urges that the “Court adopt an approach” that imposes on
8 The court recognizes that questions regarding the court’s jurisdiction, no less than immunity
issues, may warrant a stay of discovery, see, e.g., Clarendon, 2019 WL 1897845, at *2, but the
only jurisdictional question here stems from Mr. Silberman’s argument that the court should
decline to exercise supplemental jurisdiction over the ELEIA claim if the claim is not resolved
on other grounds. The court does not find that attenuated jurisdictional issue to be a persuasive
basis for staying discovery.
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Defendants—in particular, Mr. Silberman—the burden of showing that “there appears to be an
immediate and clear possibility that [the motion to dismiss] will be granted.” Id. at 9. The court
respectfully declines Ms. Lucero’s invitation to add an additional factor to the String Cheese
analysis.
First and foremost, the court views such a merits review, even if limited to a “peek,” an
improper intrusion on the authority of the district judge, who has not referred the motions to
dismiss to this court for a recommendation. See Cook, 2021 WL 981308, at *2 (concluding that
“the magistrate judge need not assess the merits of defendants’ dispositive motions” in
conducting the String Cheese analysis, observing that “defendants’ dispositive motions have not
been referred to the magistrate judge for a recommendation, and the Court finds no clear error in
Magistrate Judge Varholak’s declining to conduct a merits analysis of motions not before him”).
See also Estate of Thakuri v. City of Westminster, No. 19-cv-02412-DDD-KLM, 2019 WL
6828306, at *2 (D. Colo. Dec. 12, 2019) (“examining the merits . . . on a motion to stay
discovery would essentially require adjudication of the dispositive motion at the same time, thus
negating the entire purpose of the motion to stay and inappropriately usurping the District
Judge’s authority to determine the merits of the Motion to Dismiss”). While this court
respectfully acknowledges that some judges on this court disagree, see Love v. Grashorn, No.
21-cv-02502-RM-NRN, 2022 WL 1642496, at *4 (D. Colo. May 24, 2022), other judges “have
held that ‘no element of the String Cheese factors requires that this court make a preliminary
determination as to the likelihood of success of either the dispositive motion or the ultimate
merits of this case.’” Cook, 2021 WL 981308, at *2 (quoting Sexton v. City of Colo. Springs,
No. 20-cv-00108-PAB-KMT, 2020 WL 1875146, at *4 (D. Colo. Apr. 15, 2020) (quoting
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Sanchez v. City & Cnty. of Denver, No. 19-cv-02437-DDD-NYW, 2020 WL 924607, at *5 n.3
(D. Colo. Feb. 26, 2020)). This court deems it appropriate to adopt this cautious approach and
declines to conduct a merits review here.
In so doing, the court takes into account that, in recognizing that qualified immunity is
intended to “free officials from the concerns of litigation, including ‘avoidance of disruptive
discovery,’” Iqbal, 556 U.S. at 685, the Supreme Court does not appear to have countenanced the
idea that only those defendants who ultimately will prevail on their qualified immunity defense
are entitled to be free of the burdens of pretrial discovery. Neither is this court aware of any
suggestion by the Supreme Court that discovery may be avoided only by those defendants who
succeed in demonstrating “an immediate and clear possibility” that a court will find them
immune and grant their motion to dismiss. See Resp. at 9. Indeed, that idea is contrary to the
fundamental structure for evaluating entitlement to qualified immunity which, once asserted, is
only overcome when the plaintiff satisfies a “heavy two-part burden.” See, e.g., Medina v. Cram,
252 F.3d 1124, 1128 (10th Cir. 2001). This court declines to reframe the burdens established by
the long-settled law regulating qualified immunity.
The court also questions both the propriety and feasibility of Ms. Lucero’s proposal on a
practical level. The merits of a qualified immunity defense are by no means susceptible to a
facile assessment, nor should they necessarily be confined to Ms. Lucero’s characterizations, as
she would have the court do here. See Resp. at 14-15. What’s more, a restricted “preliminary
peek” at the substance of the arguments may yield more confusion than clarification. Without
having examined the particular briefing on qualified immunity submitted by the parties here, this
court nevertheless appreciates that a “preliminary peek” ought to take into account the “clearly
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established law” prong of the analysis, which a plaintiff must meet to satisfy her heavy two-part
burden. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (recognizing that, for the law to be
clearly established, “existing precedent must have placed the statutory or constitutional question
beyond debate”).
That analysis, done properly, might require a thorough review of many cases. Making the
wrong call on a cursory look could improperly thrust a defendant entitled to qualified immunity
into a contentious discovery process (a result antithetical to the protective aspects of the
doctrine), but a plaintiff might equally suffer negative consequences from an erroneous call. A
mistaken projection about how the district judge will rule, although attributable to a mere
“preliminary peek,” sets up a perceived dispute on this critical issue where none need exist and
would at best be an inefficient use of judicial resources.9 This court finds it preferable, and more
consistent with the law governing qualified immunity, to focus on the established String Cheese
factors—objective standards that do not depend on a referral judge’s largely uninformed call
about the merits of immunity defenses.
In sum, this court respectfully declines to employ the new criterion of a “preliminary
peek” to the long-established five-factor String Cheese test.
B. 	Application of the String Cheese Factors
The court next evaluates the established String Cheese factors in light of the record here.
Relative Burdens on the Parties (Factors 1 and 2). The court first acknowledges that
9 The apparent assumption underlying Ms. Lucero’s advocating for a “preliminary peek” is that
the court would find Mr. Silberman has failed to demonstrate “an immediate and clear
possibility” that he would prevail on his motion to dismiss, but that is a question this court need
not address and will not attempt to decide here.
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Ms. Lucero has a presumptive right to proceed expeditiously with her claims. See, e.g., Ashaheed
v. Currington, No. 17-cv-03002-WJM-SKC, 2019 WL 11690136, at *2 (D. Colo. Nov. 4, 2019).
Here, however, Ms. Lucero has not identified specific prejudice that would result from a
circumscribed stay allowing for a determination of the pending immunity questions in Mr.
Silberman’s motion to dismiss. Indeed, the timeline suggests that a stay would occasion no
particular prejudice to Ms. Lucero. Although the precise date of her arrest is unclear from the
complaint, the affidavit in support of the arrest warrant was attested to on September 15, 2020,
ECF No. 31-4 at 33, and the preliminary hearing at which Mr. Silberman allegedly presented
perjured testimony took place in March 2021. Compl. ¶¶ 117-123. Ms. Lucero then waited over
two years, until April 2023, to initiate this lawsuit. Once the lawsuit was filed, Defendants
promptly moved to dismiss, and briefing on those motions was quickly completed.
The court discerns nothing in this timeline—including no hint of potential spoliation or
loss of evidence—that suggests a stay pending resolution of the motions to dismiss would
interfere in any significant way with Ms. Lucero’s ability to expeditiously pursue her rights in
this case. The court perceives no particular risk of discovery being “diluted” here, as Ms. Lucero
claims, see Resp. at 10, and given these circumstances, the court concludes that the burden on
Mr. Silberman of proceeding with discovery in the face of his assertion of both qualified and
absolute immunity tips the scale in favor of the complete stay of discovery contemplated in
Iqbal.
To briefly recap the protections of absolute and qualified immunity discussed above,
immunity defenses serve to spare government officials from the “demands customarily imposed
upon those defending a long drawn out lawsuit,” Siegert, 500 U.S. at 232, and immunity “is an
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entitlement not to stand trial or face the other burdens of litigation.” Martin v. Cnty. of Santa Fe,
626 F. App’x 736, 740 (10th Cir. 2015) (quoting Jiron, 392 F.3d at 414) (emphasis added). The
court pauses here to emphasize that, contrary to Ms. Lucero’s contention, nothing in the Supreme
Court’s articulation of these legal standards suggests that imposing a stay of discovery where
qualified immunity has been asserted requires some showing of an “extraordinary or unique
burden imposed by the discovery at issue.” See Resp. at 11 (quoting Wells v. Dish Network, LLC,
No. 11-cv-00269-CMA-KLM, 2011 WL 2516390, at *1 (D. Colo. June 22, 2011) (finding that a
stay of discovery was not warranted in a case that did not raise immunity or jurisdictional
issues). Rather, sufficient grounds for imposing a stay emerges from Mr. Silberman pointing to
the burden of proceeding with discovery in the face of his assertion of qualified and absolute
immunity.
In light of these considerations, and taking into account the law holding that avoiding
discovery is a privilege afforded to those who raise immunity defenses, the court finds that
requiring Mr. Silberman to participate in discovery would be contrary to these governing
principles of law. On balance, then, the burden on Mr. Silberman of proceeding with discovery
outweighs the burden on Ms. Lucero of a stay pending the resolution of the motions to dismiss.
The court concludes that the first two String Cheese factors tilt in favor of a complete stay of
discovery until the immunity questions are resolved. See Iqbal, 556 U.S. at 685-86 (rejecting
view that it would be feasible for discovery to be deferred for one group of defendants “while
pretrial proceedings continue for other defendants,” and that “[e]ven if petitioners are not yet
themselves subject to discovery orders, then, they would not be free from the burdens of
discovery”); Chapman v. Fed. Bureau of Prisons, No. 15-cv-00279-WYD-KLM, 2015 WL
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4574863, at *3 (D. Colo. July 30, 2015) (finding the second String Cheese factor weighed in
favor of staying discovery, even though qualified immunity was only applicable as to some of
the claims, because “it would be difficult for the parties and the Court to distinguish between
discovery related to the claims that may be subject to qualified immunity and those that are
not”).
Convenience to the Court (Factor 3). As to the third String Cheese factor, it is certainly
more convenient for the Court to stay discovery in the matter until it is clear which claims, if
any, will proceed against which Defendant. Either of the pending motions to dismiss would
dispose of the claims against the respective Defendants. “Where a pending motion may dispose
of an action . . . a stay of proceedings may allow the Court to avoid expending resources in
managing an action that ultimately will be dismissed.” Stone v. Vail Resorts Dev. Co., No. 09-cv-
02081-WYD-KLM, 2010 WL 148278, at *3 (D. Colo. Jan. 7, 2010).
The court can readily discern from the record in this case to date that Ms. Lucero holds
impassioned views about the strength of her claims, as is her right, and that Defendants intend to
vigorously dispute her characterization of the matter, as is their right. But these passionately-held
positions also portend a contentious discovery process in which this court may often be asked to
intervene. Thus, a stay is likely to prevent wasting judicial time and resources in handling
discovery disputes concerning claims and parties that may be dismissed from the lawsuit. Even if
only a portion of the claims are dismissed, the scope of future discovery disputes will be
significantly narrowed. See, e.g., Thakuri, 2019 WL 6828306, at *3 (“In those circumstances,
scheduling and discovery issues will not be raised until it is clear which claims and which
Defendants will be moving forward in this case. It is certainly more efficient for the Court to
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handle, for example, discovery issues after initial dispositive motions have been adjudicated.”);
Estate of George v. City of Rifle, No. 20-cv-00522-CMA-GPG, 2020 WL 13825346, at *3 (D.
Colo. Nov. 6, 2020) (finding “that judicial economy is preserved by pausing discovery until it is
determined which claims, if any, have survived Defendants’ motion to dismiss”).
Interests of Non-Parties and the Public. With regard to the fourth factor, no non-parties
with significant, particularized interests in this case have been identified, favoring a stay.
Finally, as to the fifth factor, the public interest in general, the court has carefully
considered Ms. Lucero’s contention that “the public has the right to know whether the
Defendants have engaged in the extensive, high-profile, and heinous misconduct” she alleges.
Resp. at 14. That may be so, but it is equally the case that the public has a right to know that this
court is endeavoring to carefully apply the law here and striving to ensure that the due process
rights of all litigants—including those accused of “heinous misconduct”—are protected, and that
they are not deprived of any legal safeguard which a neutral and dispassionate application of the
law requires. Here, the court has concluded that the law directs that Mr. Silberman not yet be
compelled to participate in discovery. And so, “while the public has an interest in the speedy
resolution of legal disputes . . . there is also a strong public policy behind the qualified immunity
doctrine. Among other things, this includes avoiding unnecessary expenditures of public and
private resources on litigation.” Carey v. Buitrago, No. 19-cv-020703-RM-STV, 2019 WL
6215443, at *2 (D. Colo. Nov. 21, 2019) (internal citations and quotations marks omitted). Put
simply, the public interest would not be facilitated were this court to ignore the proper
application of this important legal principle.
“Overall, the public’s interest in the efficient and just handling of legal disputes” is the
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core consideration underlying the fifth factor. Thakuri, 2019 WL 6828306, at *3. See also, e.g.,
Thomas v. Rogers, No. 19-cv-01612-RM-KMT, 2019 WL 5085045, at *3 (D. Colo. Oct. 10,
2019) (finding that the public’s “primary interest” is in “an efficient and just resolution” of the
case). This court finds that staying discovery promotes the efficient and just resolution of this
matter, serves the ends of justice, and appropriately recognizes “[t]he probability that judicial
resources will ultimately be conserved by addressing dispositive issues early in the litigation, and
the probability that both judicial and attorney resources will be conserved by clarifying and
resolving [the] disputed legal issue [of absolute and qualified immunity] at the earliest possible
time. Overall, the public’s interest in the efficient and just handling of legal disputes favors
imposition of a stay in these circumstances.” Thakuri, 2019 WL 6828306, at *3 (emphasis in
original).
* 	* 	*
In sum, the court finds that balancing the String Cheese factors supports the conclusion
that a stay of discovery pending the resolution of the motions to dismiss is warranted.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1) Defendant’s Motion to Stay (ECF No. 36) is GRANTED and discovery in this matter
is STAYED pending resolution of the Motions to Dismiss (ECF Nos. 31 and 34), and
(2) Defendants’ Joint Motion for Protective Order from Undue Burden and Expense, ECF
No. 38, is DENIED AS MOOT.
(3) Within three business days of the disposition of the pending Motions to Dismiss, to
the extent there are any remaining claims, the parties SHALL CONTACT the chambers of this
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Magistrate Judge to set a Scheduling Conference.10
DATED: September 13, 2023 	BY THE COURT:
Susan Prose
United States Magistrate Judge
10 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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