Sixth Circuit endorses summary disposition where "qualified immunity" is not properly disputed

In Everson v. Leis, et al., the Sixth Circuit held that the trial court should not have extended the discovery period for Everson's replacement counsel when the Defendant Sheriff's Deputies asked for summary disposition.  Everson, an epileptic, alleged that he was mis-treated by the defendants after suffering a seizure in the local mall. 

Everson sued under 42 USC, Sections 1983 and 1985, alleging that the defendants hog-tied him and denied him necessary medical treatment, and also violated provisions of the ADA [Americans with Disabilities Act].  The Defendants sought summary disposition, alleging that they enjoyed qualified immunity as government actors, because their legal duty under the circumstances was not clearly defined.  Everson's attorney failed to conduct any discovery, failed to respond to the motion, and was actually suspended from practice in Ohio.  Everson hired a new attorney who responded to the motion with an affidavit alleging that he needed to conduct discovery in order to respond to the Defendant's motions.

The trial court agreed and allowed additional time for Everson's new attorney to investigate Everson's claims before ruling on the Defendant's motion.  The Court noted that Everson should not be punished for his attorney's failure to properly manage his claim. 

The Deputies sought an immediate "interlocutory" appeal to the Sixth Circuit, and the panel hearing the case decided that the deputies should be granted summary disposition without allowing Everson additional time to investigate the facts.  The Court held that it was more important to enforce the right to an immediate discharge where qualified immunity might apply, than it was to allow Everson's new attorney time to investigate.  It held that under Rule 56 of the Federal Court Rules, in order to secure Everson additional time for discovery, his  new attorneys needed to allege in their response to the Motion specific facts that they were reasonably likely to uncover, and which would constitute a basis for denying qualifed immunity.  Merely alleging the lack of opportunity to engage in discovery, without identifying the anticipated evidence likely to create a disputed question of fact, was inadequate.  The case was dismissed.