Opinion
CIVIL ACTION NO: 02-0055 SECTION: "R" (1)
March 26, 2004
ORDER AND REASONS
Before the Court is motion of defendant Milton Kennedy ("Kennedy") to order plaintiff to file a Rule 7(a) Reply. For the following reasons, the Court denies defendant's motion.
I. BACKGROUND
Plaintiff Debra Rice Safford asserts that the Fire District failed to promote her from volunteer to full-time firefighter because of her gender and age. Safford claims that in May 2000, the Fire District passed over her application for a full-time firefighter position in favor of four younger, less-qualified men. Safford further alleges that in August 2001, she was passed over in favor of three younger, less-qualified men. Defendants assert that she was not given the job because she failed to perform well in an interview, she was the only applicant that had received a negative reference from a previous employer, and she did not timely submit a current civil service exam score to the Fire District's Civil Service Board for the August 2001 round of hiring. Plaintiff states that although her volunteer firefighter status is currently inactive, her application is still on file with the Fire District, and she continues to be eligible for employment with the defendant.
Plaintiff contends that she fears retaliation from other firefighters as a result of this suit against the fire district and she stopped volunteering as a firefighter to avoid potentially life-threatening situations in which she would be forced to rely on the other firefighters.
On September 22, 2001, plaintiff instituted a claim with the Equal Employment Opportunity Commission. On January 8, 2002, Safford filed a complaint against the Fire District and its insurer. Safford alleges that the Fire District discriminated against her on the basis of age and gender in violation of 42 U.S.C. § 1983; 42 U.S.C. § 2000e, et seq.("Title VII"); 29 U.S.C. § 623, et. seq.("ADEA"); and Louisiana anti-discrimination laws.
She received a right to sue letter from the EEOC dated January 11, 2002.
On July 21, 2003, Safford sought leave to file her fourth amended and supplemental complaint to, inter alia, add Fire Chief Milton Kennedy as a defendant. The Fire District objected on. numerous grounds, including the argument that Safford's Section 1983 claims against Kennedy were futile because they failed to meet the heightened pleading requirement. In an order dated September 2, 2003, Magistrate Judge Shushan rejected defendants argument that plaintiff's allegations did not meet the heightened pleading standard. Defendants filed objections to the magistrate judge's ruling, and this Court specifically affirmed the magistrate's ruling with respect to her conclusion that plaintiff's allegations against Kennedy met the heightened pleading standard. Kennedy now moves the Court to order plaintiff to file a Rule 7(a) reply to his assertion of a qualified immunity defense.
II. DISCUSSION
Qualified immunity shields public officials from suit and liability under § 1983, "unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (internal quotations omitted); see also Gibson v. P.A. Rich, 44 F.3d 274, 277 (5th Cir. 1995). Since* qualified immunity does not merely offer immunity from liability, but provides immunity from suit, see Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994), plaintiffs must allege more than conclusory allegations to support their claims. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc).
In Section 1983 cases against individual public officials, the Fifth Circuit requires "claims of specific conduct and actions giving rise to a constitutional violation." Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996); see also Schultea, 47 F.3d at 1433-34. This heightened pleading standard requires more than bald allegations and conclusory statements; it demands particularized factual assertions that focus specifically on defendant's wrongful conduct. See Wicks v. Mississippi State Employment Serv., 41 F.3d 991, 995 (5th Cir. 1995).
Kennedy now moves the Court to order plaintiff to file a reply under Federal Rule of Civil Procedure 7(a) to his defense of qualified immunity. The Fifth Circuit has stated that it would be unfair to require a plaintiff to anticipate the qualified immunity defense when drafting a complaint. See Schultea, 47 F.3d at 1430; see also Mahrous v. O'Brien, 1998 WL 166189, *1 (E.D.La.). Accordingly, the court designed a unique pleading procedure to manage such cases. See Schultea, 47 F.3d at 1433-34. First, a plaintiff is required to file a short and plain statement of his complaint relying on more than mere conclusions. A district court may then, in its discretion, insist that a plaintiff file a reply specifically responding to the defendant's qualified immunity defense. See id.; Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995). "Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's discretion not to do so is narrow indeed when greater detail might assist." Schultea, 47 F.3d at 1434; see also Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) (noting that when faced with sparse details of claimed wrongdoing by officials, trial courts should "routinely" require plaintiffs to file a reply under Rule 7(a) to qualified immunity defenses).
Here, Magistrate Shushan specifically found that plaintiff's allegations met the heightened pleading standard necessary to overcome Kennedy's defense of qualified immunity. This Court affirmed the magistrate's ruling in this respect. Consequently, the Court finds that requiring plaintiff to file a Rule 7(a) reply is unneccessary and denies defendant's motion.
III. CONCLUSION
For the foregoing reasons, the Court denies defendant's motion for a Rule 7(a) reply.
New Orleans, Louisiana,