Professional Documents
Culture Documents
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Clerk of Court
No. 04-1450
-2-
liability. Roska v. Peterson, 328 F.3d 1230, 1239 (10th Cir. 2003) (internal
quotation marks, citations, and italics omitted). When a defendant asserts the
defense of qualified immunity, the burden shifts to the plaintiff to overcome the
asserted immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). The
plaintiff must first establish that the defendants actions violated a constitutional
or statutory right. If the plaintiff establishes a violation of a constitutional or
statutory right, he must then demonstrate that the right at issue was clearly
established at the time of the defendants unlawful conduct. Id. (internal
quotation marks and citations omitted).
The issue on appeal is not the merits of Appellants qualified-immunity
claim, but whether they adequately raised the defense below. Their answer to
Mr. Ahmads Third Amended Complaint (which did not include a RLUIPA claim)
stated the defense. Then in response to the Fourth Amended Complaint, they and
defendant Watts filed an Amended Answer and Jury Demand containing the
following paragraphs:
Original Answer and Affirmative Defenses Reaffirmed
3. The Defendants reassert and reaffirm their original
ANSWER as well as the affirmative defenses in the ANSWER, to
wit: Defendants are immune under the doctrine of Qualified
Immunity; and any conduct of the defendants was based on a
legitimate penological interest and or authorized by law.
RLUIPA Claim
4. The Defendants deny that they have violated any provisions
of RLUIPA.
-4-
dismissed against the State Defendants in their individual capacity. Id. at 197.
The section does not address any specific claim, mentioning neither RLUIPA nor
any specific constitutional provisions, nor does it specifically exempt any claim
from their assertion of qualified immunity. Mr. Ahmads responsive brief,
however, specifically argues that Appellants are not entitled to qualified immunity
on the RLUIPA claim. In the section headed, Summary Judgment is
inappropriate with respect to Defendants [sic] Affirmative Defense of Qualified
Immunity, id. at 236, it states:
Furthermore, even if the Court were to find that Plaintiffs
right to exercise his religion in this context was not clearly
established under pre-RLUIPA analysis, RLUIPAs heightened
standard requires that once Plaintiff has asserted that his religious
freedom has been violated, Defendants must (1) have a compelling
state interest in prohibiting the practice and (2) must be employing
the least restrictive means of reaching that interest. 42 U.S.C.
2000cc-1. Defendants have made no efforts to ensure that their
policy of prohibiting group prayer outside the cells, nor their policy
of prohibiting individual Muslim prayer outside the cell, is the least
restrictive means available to them. Defendants were aware of
RLUIPA. . . . As argued above, the fact that Plaintiff was allowed to
pray in the multi-purpose room prior to January of 2000 tends to
show that there is a least [sic] restrictive means of allowing corporate
prayer in that room.
Id. at 238-39. In the Final Pretrial Order, filed before Appellants motion
for summary judgment was decided, Appellants again assert in general
terms the defense of qualified immunity.
-6-
-7-
-8-
Appellants Amended Answer and Motion for Summary Judgment are both
ambiguous with respect to whether they are raising a qualified-immunity defense
to the RLUIPA claim. The district courts analysis was straightforward: It
resolved the ambiguity against Appellants with respect to the Amended Answer
and then concluded that the failure to plead the defense barred its consideration
by the court. In our view, a less rigid approach is required. We do not question
the district courts resolution of the ambiguity in the Amended Answer. Were we
required to decide one way or the other with respect to whether qualified
immunity to the RLUIPA claim had been raised in the Amended Answer, we
might well agree with the district court. Nevertheless, in light of (1) the purposes
for requiring affirmative defenses to be pleaded, (2) the ambiguity in both the
Amended Answer and the Motion for Summary Judgment, and, critically, (3)
Mr. Ahmads discussion of the qualified-immunity defense to the RLUIPA claim
in his response to the motion, we hold as a matter of law that the defense was
adequately presented to the court and should have been decided. See FDIC v.
Oaklawn Apartments, 959 F.2d 170, 173 (10th Cir. 1992) (Whether an affirmative
defense has been waived is a mixed question of law and fact, which require[s] us
to accept the district courts factual conclusions unless clearly erroneous but
review the application of the facts to the law under a de novo standard.); Mullan
v. Quickie Aircraft Corp., 797 F.2d 845, 850 (10th Cir. 1986) (mixed question of
-9-
law and fact is reviewed de novo when issue involves primarily consideration of
legal principles).
We first address whether failure to plead qualified immunity to the
RLUIPA claim in their Amended Answer is fatal to Appellants argument. In
pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . .
affirmative defense. Fed. R. Civ. P. 8(c). Since qualified immunity is a
defense, the burden of pleading it rests with the defendant. Gomez v. Toledo,
446 U.S. 635, 640 (1980).
The D.C. Circuit has held that an affirmative defense may not be raised for
the first time in a post-answer motion without first amending the answer. Harris
v. Secretary, U.S. Dept of Veterans Affairs, 126 F.3d 339, 344-45 (D.C. Cir.
1997). But strict adherence to the pleading requirement is inappropriate when the
purpose of the requirement has been otherwise fulfilled. The purpose of . . .
pleading [an affirmative defense] is to give the opposing party notice of the
[defense] and a chance to argue, if he can, why the imposition of [the defense]
would be inappropriate. Blonder-Tongue Lab., Inc. v. Univ. of Ill. Found., 402
U.S. 313, 350 (1971). Accordingly, [m]ost other courts are not so strict [as the
D.C. Circuit]. They do permit a defendant to raise an affirmative defense for the
first time in a post-answer motion if the defense is raised in sufficient time that
there is no prejudice to the opposing party merely because of the delay. 2 James
-10-
Wm. Moore et al., Moores Federal Practice, 8.07[2] (3d ed. 1997). See
Williams v. Ashland Engg Co., 45 F.3d 588, 593 (1st Cir. 1995) (Rule 8(c)s
core purpose [is] to act as a safeguard against surprise and unfair prejudice . . . .
Where, as here, a plaintiff clearly anticipates that an issue will be litigated, and is
not unfairly prejudiced when the defendant actually raises it, a mere failure to
plead the defense more particularly will not constitute a waiver.); Saks v.
Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) ([A] district court may
still entertain affirmative defenses [not pleaded in the answer] at the summary
judgment stage in the absence of undue prejudice to the plaintiff, bad faith or
dilatory motive on the part of the defendant, futility, or undue delay of the
proceedings.); Pro v. Donatucci, 81 F.3d 1283, 1286 n.2 (3d Cir. 1996) (Our
court previously has taken the position that whether an affirmative defense that
must be pleaded in the answer is waived will depend on whether the defense was
raised at a pragmatically sufficient time and the plaintiff was prejudiced in the
ability to respond. (internal quotation marks omitted)); Brinkley v. Harbour
Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999) ([T]here is ample authority
in this Circuit for the proposition that absent unfair surprise or prejudice to the
plaintiff, a defendants affirmative defense is not waived when it is first raised in
a pre-trial dispositive motion.); Giles v. Gen. Elec. Co., 245 F.3d 474, 491-92
(5th Cir. 2001) (Although failure to raise an affirmative defense under rule 8(c)
-11-
simply because of a failure to set forth in the complaint a theory on which the
plaintiff could recover, provided that a late shift in the thrust of the case will not
prejudice the other party in maintaining its defense. Green Country Food Mkt.,
Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1279 (10th Cir. 2004). And we have
held that an affirmative defense was not waived for trial purposes when it had
first been raised in a motion for summary judgment three months earlier. Ball
Corp. v. Xidex Corp., 967 F.2d 1440, 1443-44 (10th Cir. 1992) (This court has
held that the purpose behind rule 8(c) is that of putting plaintiff on notice well in
advance of trial that defendant intends to present a defense in the nature of an
avoidance. (internal quotation marks and brackets omitted)).
We agree with the D.C. Circuit that the best procedure is to plead an
affirmative defense in an answer or amended answer. And, as that court pointed
out, absence of prejudice to the opposing party is not the only proper
consideration in determining whether to permit an amended answer; a motion to
amend may also be denied on grounds such as undue delay, bad faith or dilatory
motive . . . , or repeated failure to cure deficiencies by amendments previously
allowed. Harris, 126 F.3d at 345 (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)) (internal brackets omitted). Accordingly, courts should not permit a party
to circumvent these other restrictions on amendments simply by filing a
dispositive motion rather than a motion to amend. See id. But that concern can
-13-
-16-
At oral argument, counsel for Mr. Ahmad asserted that his response to the
summary-judgment motion did not acknowledge that Appellants had raised a
qualified-immunity defense to the RLUIPA claim. He characterized the response
as an even if argument, meaning that he was simply arguing that even if the
pleadings alleged qualified immunity on the RLUIPA claim, Appellants were not
entitled to summary judgment. But that is not how the response framed the
argument, and the district court could not have reasonably read the response that
way. Moreover, Mr. Ahmad posed no objection to the RLUIPA qualifiedimmunity defense being raised before the district court. Instead, the magistrate
judge sua sponte concluded that Appellants had limited their qualified-immunity
defense to the constitutional claims.
Finally, having accepted the district courts determination that qualified
immunity with respect to the RLUIPA claim was not pleaded in the Amended
Answer, but also having concluded that it was adequately raised by the summaryjudgment motion, we consider whether Appellants should have been precluded
from constructively amending their answer by raising the defense in the motion.
No grounds for such preclusion are apparent to us. Indeed, perhaps because
Mr. Ahmad read the Amended Answer as asserting the defense, his response to
the motion for summary judgment raised no objection to Appellants claiming
RLUIPA qualified immunity. Nor did his counsel at oral argument point to any
-17-
prejudice he would have suffered had the district court considered the defense. In
particular, counsel acknowledged that no additional discovery would have been
necessary. We therefore hold that the defense could be raised for the first time in
the summary-judgment motion. Had the district court ruled otherwise, the ruling
would have been an abuse of discretion.
We REVERSE the district courts ruling that Appellants waived the defense
of qualified immunity on the RLUIPA claim, and REMAND for a determination
of the issue.
-18-