511 F.Supp.3d 594
E.D. Pa.2021Background
- At the 2016 DNC protest, Philadelphia police seized and arrested Jeremy Graber after he was grabbed in a crowd; Graber — a paramedic — carried a bag with small utility knives. He was taken into a restricted area and federally charged under 18 U.S.C. § 1752.
- Secret Service Special Agent Aaron McCaa and others were on site; Special Agent Michael Boresky was at home. The next day Boresky signed an affidavit of probable cause and presented it to a magistrate judge; Graber was detained pending trial.
- Subsequent video evidence showed Graber had not entered the restricted zone before being grabbed; the federal charges were dismissed and Graber filed a Bivens suit alleging false arrest/detention against Boresky.
- Boresky moved for summary judgment (asserting qualified immunity) and to stay discovery. He submitted declarations and documents but not declarations from agents directly involved in the arrest or the agent who supplied the information (McCaa).
- Graber filed a Rule 56(d) declaration seeking targeted discovery (depositions of Boresky, declarants, Agent McCaa, and communications relied on for the affidavit). No discovery had occurred before the summary judgment motion.
- The court held that qualified immunity turns on whether Boresky’s belief in probable cause was objectively reasonable and that discovery tailored to that question was necessary; it denied summary judgment without prejudice and granted Graber’s request for additional discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery is required before resolving Boresky's qualified immunity claim | Graber: discovery is necessary to show what Boresky relied on and to test affidavits | Boresky: his submitted declarations/emails suffice; stay discovery | Court: Discovery is required; summary judgment dismissed without prejudice |
| Scope of permissible discovery | Graber: depositions and communications about the affidavit and authorship are relevant | Boresky: discovery should be limited to what he heard/relied on; offered narrow exchange | Court: Discovery may be conducted but must be tailored to the qualified-immunity question; objections governed by the Rules |
| Sufficiency of Graber's Rule 56(d) showing | Graber: specific reasons and targets for discovery; cannot oppose without discovery | Boresky: 56(d) fails to show how discovery would preclude summary judgment | Court: 56(d) met; plaintiff entitled to present evidence to oppose the motion |
| Whether summary judgment should be stayed or decided now | Graber: opposing summary judgment until discovery | Boresky: move to dismiss/stay discovery and resolve immunity now | Court: denied summary judgment without prejudice and allowed tailored discovery (did not stay discovery in Boresky’s favor) |
Key Cases Cited
- Doe v. Abington Friends Sch., 480 F.3d 252 (3d Cir. 2007) (summary judgment presupposes an adequate record and nonmovant must have opportunity for discovery)
- Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015) (if discovery is incomplete, summary judgment is rarely justified)
- In re Avandia Mktg., Sales & Prod. Liab. Litig., 945 F.3d 749 (3d Cir. 2019) (district court must consider Rule 56(d) declarations before granting summary judgment)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity protects officials from the burdens of broad discovery)
- Oliver v. Roquet, 858 F.3d 180 (3d Cir. 2017) (discovery unnecessary where plaintiff failed to state a claim or no clearly established right was implicated)
- Anderson v. Creighton, 483 U.S. 635 (1987) (qualified immunity inquiry and circumstances where discovery may be needed)
- Rogers v. Powell, 120 F.3d 446 (3d Cir. 1997) (standard addressing objective reasonableness and probable cause in qualified immunity contexts)
- Hart v. City of Philadelphia, [citation="779 F. App'x 121"] (3d Cir. 2019) (abuse of discretion to deny a plaintiff any discovery before ruling on immunity-related summary judgment)