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Bey v. Roop

November 3, 2006

RAAHKIM EL BEY, PLAINTIFF,
v.
OFFICER TIM ROOP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

DECISION AND ORDER SETTING SCHEDULE FOR DETERMINATION OF IMMUNITY ISSUES AND STAYING DISCOVERY

This case came on for preliminary pretrial conference at 9:00 A.M. on Friday, November 3, 2006. Plaintiff appeared personally and Defendants' counsel participated by telephone.

Defendants' have moved to stay discovery pending decision on their immunity claims (Doc. Nos. 15, 19). Plaintiff's extensive response (Doc. No. 21) essentially argues the merits of the immunity claims. His basic argument is that there should be no stay because Defendants are not immune. However, as of the time of the conference, Defendants have only pleaded immunity and not presented that defense in a way that the Court can decide it on the merits.

Because qualified and absolute immunity are immunities from suit as well as from damages, a public official who pleads an immunity defense is entitled to have that defense decided before the case proceeds even to discovery. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed. 2d 277 (1991); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed. 2d 411 (1985); Dominque v. Telb, 831 F.2d 673 (6th Cir. 1987); Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988).

So as to resolve the immunity question as promptly as possible, Defendants are ordered to present their immunity defenses by motion (to dismiss, for judgment on the pleadings, or for summary judgment) not later than November 24, 2006. Plaintiff will then have twenty-four days to respond and Defendants will have the standard reply time under S. D. Ohio Civ. R. 7.2. Pending decision on those motions, the motions to stay discovery are granted and no discovery shall occur until those decisions or further order of the Court.

Michael R. Merz Chief United States Magistrate Judge

20061103

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