CASE NO. CIV-97-113-B

DOUGLAS G. DRY, et. al,

Plaintiffs,

VS.


UNITED STATES OF AMERICA, et. al,

Defendants.

Plaintiffs' response brief essentially argues two points. The federal defendants have previously refuted plaintiffs' first contention that all factual allegations in the Amended Complaint must be taken as true. See Federal Defendants' Reply in Support of Motion to Dismiss, filed August 1, 1997 at 2, and Federal Defendant's Motion to Dismiss, filed June 20, 1997, at 4, n.4.

The remainder of plaintiffs' reply is principally devoted to the argument that discovery is necessary for the court to rule on the qualified immunity defense. While limited discovery bearing on the immunity issue may be necessary in some cases, this is not such a case, particularly with respect to the claims sought to be asserted against the federal defendants. As pointed out in Federal Defendant's Motion to Dismiss, the Amended Complaint fails to plead any facts meeting the heightened pleading standard and alleging anything which could even arguably show any personal involvement of any of the federal defendants.

Moreover, the United States Supreme Court has emphasized that qualified immunity is an immunity from suit rather than a mere defense to liability, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and should be resolved at the earliest possible stage of a litigation. Anderson v. Creighton, 483 U.S. 635, 646 (1987); Mitchell v. Forsyth, 472 U.S. at 526; Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).

The court has all the requisite facts to apply the law governing qualified immunity which leads to the inescapable conclusion that this privilege defeats plaintiffs' suit against all of the individual federal defendants. So as not to render meaningless the Supreme Court's admonition that the qualified privilege must be applied as an immunity from suit, the Federal Defendants' Motion to Suspend Discovery, to Vacate Scheduling Order, Including Trial Date, and to Strike Jury Trial Setting should be granted.

I hereby certify that on the 7th day of August,1997, a true and correct copy of the foregoing document was caused to be mailed postage-prepaid to the following:

Scott Kayla Morrison
P.O. Box 637
Wilburton, OK 74578

W. G. Steidley, Jr.
Charles D. Neal, Jr.
Eric D. Janzen
P.O. Box 1165
McAlester, OK 74502-1165

Allison A. Cave
P.O. Box 1609
Muskogee, OK 74402-1609