Wrongful death and personal injury victims are entitled to discover case facts underlying their 42 U.S.C. §1983 civil rights claims before adverse adjudication of a dispositive motion, even if a defendant claims qualified immunity. On January 2, 2009, Avery T. “Sandy” Waterman, Jr., Esq. was ordered discovery in a §1983 civil rights wrongful death suit despite motions to dismiss on qualified immunity in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. Jan. 2, 2009).

“A trial court may consider evidence [on a Fed. R. Civ. P. 12(b)(1) motion for qualified immunity] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Adams v. Bain, 697 F.2d. 1213, 1219 (4th Cir. 1982). However, a defendant’s 12(b)(1) motion should be denied where the underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only by a proceeding in the merits.” Id. (§1983 dismissal reversed and remanded for lack of discovery unto merits).

Indeed, discovery on qualified immunity should be permitted even if a motion for summary judgment is filed under Rule 56. For example, the Fourth Circuit reversed a grant of summary judgment on qualified immunity on the mere possibility that one of the police cruisers at the scene may have had a camera with videotape. Ingle v. Yelton, 439 F.3d., 191, 196-198 (4th Cir. 2006). “Although [plaintiff] could not determine whether any of the vehicles present that night had cameras installed, the new policy provided sufficient basis to conclude that a videotape of the incident might exist. Such a videotape might have provided [plaintiff] with an opportunity to contradict the affidavits upon which the district court relied. For this reason, we remanded for further discovery as to the existence of a videotape of the incident; our mandate specifically noted that the district court could reconsider the defendants’ motion for summary judgment again after completion of discovery.” Id. at 197. Ingle v. Yelton, 2008 U.S. App. LEXIS 3184, *3-4 (4th Cir. Feb. 14, 2008).

Likewise, last year a Virginia district court twice deferred consideration of defendants’ motions in favor of discovery, following Fourth Circuit precedent. “[T]he United States Court of Appeals for the Fourth Circuit has held that ‘ordering discovery on the issues of immunity…[is] well within the discretion of the district court.’ American Civil Liberties Union, Inc. v. Wicomico County, 999 F.2d. 780, 787 (4th Cir. 1993). Indeed, most often ‘qualified immunity is tested at the summary judgment stage after the facts have been developed through discovery.’ Alford v. Cumberland County, No. 06-1569, 2007 U.S. App. LEXIS 24138, 2007 W.L. 2985297, at *3 (4th Cir. Oct. 15, 2007).” Turner v. Kinder, 2008 U.S. Dist. LEXIS 18143, *8 (W.D.Va. Mar. 10, 2008) and 2008 U.S. Dist. LEXIS 39709, * 6-10 (W.D.Va. May 15, 2008).

Specifically, Turner initially upheld various discovery requests on §1983 civil rights claim for denial of medical attention and extent of injuries. “The court finds that the discovery requested by [plaintiff] could contribute to the determination of whether defendants acted maliciously and sadistically for the very purpose of causing harm, whether [plaintiff] injuries were more than de minimis, and whether defendants were deliberately indifferent to [plaintiff’s] allegedly serious medical needs.***The court further determines that the discovery requested by [plaintiff] could contribute to the determination of the extent of [plaintiff’s] injuries and whether or not defendants offered [plaintiff] medical care. Accordingly, as the discovery requests are relevant to qualified immunity, the court finds that [plaintiff] has made an adequate showing of his need to engage in discovery and will grant him the opportunity to do so.” 2008 U.S. Dist. LEXIS 18143 at 10-11. Subsequently, Turner ordered production concerning “any relevant complaints, investigations, civil rights or criminal actions, and disciplinary reports,” including ones post-incident and/or related to the suit. 2008 U.S. Dist. LEXIS 39709 at 7 and 10.