Jordan Zantiz v. Ronnie Seal

Case: 14-30069 Document: 00512944371 Page: 1 Date Filed: 02/23/2015

REVISED February 23, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 14-30069 February 20, 2015

Lyle W. Cayce

JORDAN DARRELL ZANTIZ, Clerk

Plaintiff - Appellee

v.

RONNIE SEAL, Captain; WADE RIGDON, Lieutenant; BRUCE FORBES,

Sergeant - EMT; LESTER MITCHELL, Captain; HEATHER WARNER,

Sergeant; RHONDA DISTEFANO, Sergeant Master; CRAIG KENNEDY,

Major; FRANK CLELAND, Captain Food Service/Security; CARLA TULLOS,

Sergeant Master,

Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-1580

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Pro se appellee Jordan Darrell Zantiz (“Zantiz”), previously an inmate at

Louisiana’s Rayburn Correctional Center (“Rayburn”), sued appellants, nine

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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Rayburn employees (collectively, “appellants”), under state law and 42 U.S.C.

§ 1983 for use of excessive force, failure to protect, and deficient provision of

medical care. This interlocutory appeal involves the appellants’ federal

qualified immunity defenses. Five appellants appeal the denial of their

qualified immunity defenses, one at the motion to dismiss stage and the others

at the summary judgment stage. All nine appellants appeal the discovery

order issued below. We AFFIRM the orders denying the motion to dismiss and

the motion for summary judgment, but we VACATE the discovery order as to

five of the appellants.

FACTUAL AND PROCEDURAL BACKGROUND

Zantiz’s pro se, verified complaint alleges the following. On December

31, 2011, appellant Sergeant Rhonda Distefano (“Distefano”) escorted Zantiz

to the dining hall to speak to appellant Captain Lester Mitchell (“Mitchell”)

about a previous incident. At the conclusion of this discussion, Mitchell told

Zantiz that he was going to be “lock[ed] up pending investigation.” Zantiz

responded, “That’s cool.” Appellant Captain Ronnie Seal (“Seal”) handcuffed

Zantiz with his hands behind his back, “and then punched [Zantiz] on [his] left

ear and twisted the cuffs and grabbed [his] shirt collar.” Zantiz asked Mitchell

why Seal was punching him, and Mitchell responded, “Oh well.” Seal then

“began pushing [Zantiz] out of the dining hall, yelling racial things in [his] ear.”

When Zantiz and Seal reached “‘A’ walk,” Seal punched Zantiz again and

ordered appellant Sergeant Master Carla Tullos (“Tullos”) to open the gate. As

Zantiz and Seal walked “down the sidewalk in between ‘B’ building and the

‘ED’ building, Lt. Seal jerked [Zantiz’s] collar and started yelling in [his] ear

about how he hates smart-ass niggers.” 1 Then, “[a]t the end of the sidewalk

1 The appellant’s brief informs us that Lieutenant Seal has since been promoted to the

rank of captain.

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just before [they] hit the asphalt, Lt. Seal forced [Zantiz] to the ground and

began kneeing [him] in the back, and side areas (left) repeatedly.” Shortly

thereafter, Zantiz’s “legs were crossed and someone began stomping on [his]

back, butt and leg.” When Zantiz looked back, he saw appellant Lieutenant

Wade Rigdon (“Rigdon”) “twisting/pulling [his] feet cross [sic] each other.” Seal

“continued kicking and stomping” Zantiz. Seal “then began lifting [Zantiz’s]

arms up and kneed [him] in the back once again. [Seal] put his arm around

[Zantiz’s] neck choking [him,] yelling in [his] ear” various racist threats. When

Zantiz looked up, he saw that Tullos and appellant Sergeant Heather Warner

(“Warner”) had witnessed the incident.

Later, once Zantiz was “secured in sleet unit confinement,” Seal brought

appellant Emergency Medical Technician (“EMT”) Sergeant Bruce Forbes

(“Forbes”) to see Zantiz. Forbes “noticed that [Zantiz’s] left ear was bleeding

and joked about [him] still having a [sic] ear.” Zantiz “showed [Forbes] the rest

of [his] injuries and hurting spots. EMT Forbes pressed on a area on [his] left

side and informed Lt. Seal that [he had] a fractured rib, but told [Seal] that

[Zantiz] would live.” Forbes “told Lt. Seal that [Zantiz’s] wrist, ankles, back

and everything else would heal up in a few weeks.” Zantiz “told [Forbes] that

[he] want[ed] to see the doctor. He replied, ‘No you don’t,[ ] your black ass

shouldn’t have pissed Lt. Seal off.’” Zantiz complained that he had just been

beaten by Seal, and Seal and Forbes laughed and told Zantiz “to lay down for

a couple of days.” Zantiz “asked EMT Forbes if he was deliberately denying

[him] medical treatment. He replied, ‘yeah,[ ] what can you do about it’ and

walked away with Lt. Seal.”

The magistrate judge assigned to the case held a Spears hearing. That

testimony is “incorporated into [Zantiz’s] pleadings.” Eason v. Holt, 73 F.3d

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600, 602–03 (5th Cir. 1996). 2 At the Spears hearing, Zantiz testified under

oath. His Spears testimony was broadly consistent with his complaint,

although he added a few more facts. For example, he estimated that the entire

altercation may have lasted about 15 minutes. He also testified that, as of

September 4, 2012, he still had “a big old knot” in his poked eye, he had been

“having back problems ever since the incident,” his ear still “pusse[d] from time

to time,” and he still had neck and tailbone pain, although his ribs had stopped

hurting around April of 2012. He testified that, during the three shifts after

the alleged beating, he told staff that he was having trouble breathing, but

they declined to provide treatment, telling him he had already been treated by

Forbes. Zantiz testified that he had not sought medical treatment after that,

however, “because Medical had a chance to correct the situation and they have

not done anything to correct the situation at all.”

Zantiz also provided testimony about the named defendants he had not

discussed in his original complaint. He testified that Distefano and appellant

Major Craig Kennedy (“Kennedy”) were present in the dining hall when Seal

first hit Zantiz in the side of the head, but they did nothing. He also testified

that appellant Captain Fred Cleland (“Cleland”) “threatened to bust me up

when I walked up in there because he said I needed to mind my own business.” 3

2A Spears hearing helps determine whether a prisoner’s in forma pauperis lawsuit

should be dismissed as frivolous under 28 U.S.C. § 1915. Spears v. McCotter, 766 F.2d 179

(5th Cir. 1985), abrogated in part on other grounds by Neitzke v. Williams, 490 U.S. 319, 328

(1989). The Spears hearing is conceptualized as a motion for more definite statement under

Federal Rule of Civil Procedure 12(e). Id. at 181–82. Accordingly, Spears hearing testimony

is “incorporated into the pleadings.” Eason, 73 F.3d at 602–03.

3From the Spears testimony and the complaint, it is not entirely clear whether

Cleland was present during the dining hall incident or the later incident. But, because

Zantiz’s testimony about Cleland was immediately after testimony about other people

present in the dining hall, it is reasonable to assume that Cleland witnessed the dining hall

incident. The district court also reached this conclusion.

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Based on Zantiz’s complaint and Spears testimony, the magistrate judge

determined that Zantiz was suing Seal and Rigdon for use of excessive force,

Forbes for inadequate provision of medical care, and Mitchell, Tullos, Warner,

Distefano, Kennedy, and Cleland for failure to protect. 4 The district court

agreed with the magistrate judge’s breakdown of the legal theories alleged

against each appellant.

Forbes filed a motion to dismiss based on his qualified immunity defense,

arguing that he had not violated the Constitution. He argued that Zantiz had

not had a serious medical need, and therefore Forbes could not be liable for

deliberate indifference to a serious medical need. Forbes acknowledged that

the alleged injuries, taken alone, would have been a serious medical need, but

he argued that Zantiz must have been lying about the extent of the injuries

because he never requested any additional medical treatment. The district

court denied Forbes’s motion to dismiss, rejecting his argument that Zantiz

failed to seek additional treatment because his Spears testimony indicated that

he asked for medical treatment during the three shifts after the alleged

beating.

Mitchell, Cleland, Kennedy, and Distefano (collectively, the “summary

judgment defendants”) filed a motion for summary judgment based on

qualified immunity, arguing that they had not violated the Constitution. The

summary judgment defendants were the Rayburn staff who allegedly failed to

protect Zantiz in the dining hall. They submitted a video allegedly showing

Seal handcuffing Zantiz in the dining hall. In the video, Seal does not hit or

drag Zantiz. Accordingly, the summary judgment defendants argued that Seal

did not use any force against Zantiz in the dining hall, so they cannot be liable

4 Zantiz also sued Rayburn’s warden, but the warden was dismissed from the suit and

is not a party to this appeal.

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for failure to protect. They also argued that, even if Seal hit or otherwise used

force against Zantiz in the dining hall, there was no evidence that they could

have stopped Seal’s use of force. The district court denied the motion for

summary judgment, holding that, because the video footage only showed

approximately nine seconds of Seal’s interaction with Zantiz, the footage was

insufficient to controvert Zantiz’s allegations about the dining hall incident.

The district court did not directly deal with the summary judgment defendants’

contention that any alleged use of force would have happened too quickly for

them to intervene.

Before the district court ruled on Forbes’s motion to dismiss or the

motion for summary judgment, Zantiz filed a motion to compel discovery. All

appellants objected to Zantiz’s motion to compel on qualified immunity

grounds. They argued that they were completely immune from discovery

because their qualified immunity defenses had not been considered. The

magistrate judge granted Zantiz’s motion to compel discovery in part,

determining that only some of the requested discovery was relevant to deciding

the issue of qualified immunity. The discovery order required the production

of: “various employee conduct and training manuals and written policy

statements, but only insofar as they relate to use of force against inmates,

protection of inmates, their medical care and racial discrimination”;

administrative remedies procedure materials “that relate to any grievance

asserted by plaintiff” for the December 31, 2011 incident; each appellant’s

employment file for in camera review; and “the investigative materials

concerning the subject prison incident in this case” for in camera review. The

appellants appealed the magistrate judge’s discovery order to the district court,

which dismissed the appeal as moot because, in the interim, it had rejected

Forbes’s and the summary judgment defendants’ qualified immunity defenses.

The district court did not specifically mention Seal, Rigdon, Tullos, or Warner,

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the appellants who had not yet filed motions raising the qualified immunity

defense.

Forbes appeals the denial of his motion to dismiss. The summary

judgment defendants appeal the denial of their motion for summary judgment.

And all appellants appeal the discovery order. Zantiz did not file a response

brief for the appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a district court’s interlocutory denial of a

qualified immunity defense only “to the extent that the appeal turns on an

issue of law.” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (internal

quotation marks and citations omitted) (interlocutory denial of motion for

summary judgment); Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)

(interlocutory denial of motion to dismiss).

We review de novo the denial of a motion to dismiss, taking all well-

pleaded facts as true. Brown, 519 F.3d at 236. We also review de novo denial

of a summary judgment motion, taking the facts in the light most favorable to

the nonmoving party. Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014).

That said, “[w]hen one party's description of the facts is discredited by the

record, we need not take his word for it but should view ‘the facts in the light

depicted by [a] videotape.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir.

2012) (quoting Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Further, because

this appeal is interlocutory, “we consider only whether the district court erred

in assessing the legal significance of the conduct that the district court deemed

sufficiently supported for purposes of summary judgment.” Luna, 773 F.3d at

718 (internal quotations marks and citation omitted). “We may review the

district court’s conclusion that issues of fact are material, but not the

conclusion that those issues of fact are genuine.” Id. (internal quotation marks

omitted). “If the district court does not specify all the facts that it finds to be

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in dispute, we conduct an analysis of the record to determine what issues of

fact the district court likely considered genuine.” Kovacic v. Villarreal, 628

F.3d 209, 211 n.1 (5th Cir. 2010) (internal quotation marks and citation

omitted).

We generally lack jurisdiction to review discovery orders. Backe v.

LeBlanc, 691 F.3d 645, 647–48 (5th Cir. 2012). But we have jurisdiction to

review certain discovery orders in cases involving the qualified immunity

defense. Id. at 648. In particular, we have jurisdiction to review such a

discovery order if the district court does not first determine whether the

plaintiff’s pleadings, taken as true, are sufficient to overcome the qualified

immunity defense. Id. We also have jurisdiction to consider a discovery order

that has not been “narrowly tailored to uncover only those facts needed to rule

on the immunity claim.” Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507–

08 (5th Cir. 1987)). We review such orders for abuse of discretion. See id. at

648–49 (reversing such an order because the district court abused its discretion

by issuing it).

DISCUSSION

I. Forbes’s Motion to Dismiss

Zantiz’s federal claim against Forbes alleges constitutionally deficient

medical care. “[D]eliberate indifference to serious medical needs of prisoners

constitutes the unnecessary and wanton infliction of pain prescribed by the

Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal

quotation marks and citation omitted). We have defined a “serious medical

need” as “one for which treatment has been recommended or for which the need

is so apparent that even laymen would recognize that care is required.” Gobert

v. Calwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).

Forbes argues that he is entitled to dismissal because Zantiz does not

identify any serious medical need. But this argument is waived because, at

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the district court level, Forbes admitted that Zantiz’s combination of alleged

injuries would qualify as a serious medical need. That is, in his motion to

dismiss, Forbes stated:

Accepting the allegations as true that plaintiff’s injuries from the

use of force included a bloody ear that, months later, still “pusses,”

that the EMT told the Lieutenant the plaintiff had a fractured rib,

he had a “knot in the eye,” and his back and neck have hurt since

the incident, there is no doubt plaintiff would have identified a

“serious medical need” for purposes of the Eighth Amendment

analysis.

Thus, Forbes expressly disclaimed any argument that these allegations, taken

as true, were not a serious medical need.

“Under our general rule, arguments not raised before the district court

are waived and will not be considered on appeal unless the party can

demonstrate ‘extraordinary circumstances.’” State Indus. Prods. Corp. v. Beta

Tech., Inc., 575 F.3d 450, 456 (5th Cir. 2009). The burden is on Forbes to

demonstrate that such extraordinary circumstances exist. Id. But he has not

argued that extraordinary circumstances exist. Thus, Forbes has waived his

argument that Zantiz’s injuries were not a serious medical need.

Forbes also argues that Zantiz’s failure to seek additional treatment

undermines his deliberate indifference claim. 5 But it is not dispositive that

the possibly fractured rib and other injuries did not later cause Zantiz such

serious medical problems that he sought additional treatment. The question

is whether there was a substantial risk to the patient at the time that Forbes

allegedly refused to provide additional treatment, not whether that risk

5 This argument is not waived because Forbes argued in his motion to dismiss that

the fact that Zantiz did not later seek medical treatment indicated that Zantiz “either . . . lied

about suffering the injuries or exaggerated their severity.”

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actually materialized. Gobert, 463 F.3d at 349 n.30. 6 Thus, the fact that Zantiz

never received additional medical treatment is irrelevant, except insofar as it

tends to impeach Zantiz’s sworn allegation that he suffered the alleged

injuries. Of course, we cannot weigh these facts at the motion to dismiss stage.

Forbes also argues that he was not aware of a substantial risk of harm

to Zantiz, so he was not deliberately indifferent. We disagree. Again, Zantiz’s

complaint alleges that Forbes verbally acknowledged that Zantiz was suffering

from what Forbes now admits were serious medical needs, but Forbes refused

to treat these injuries, telling Zantiz that “your black ass shouldn’t have pissed

Lt. Seal off.” Taking these allegations as true, as we must, Forbes was aware

of a serious medical need and refused to treat it without any justifiable medical

or penological reason. Deliberate indifference can be demonstrated through

such a refusal to treat. Gobert, 463 F.3d at 346.

Forbes argues that his lack of knowledge of a serious medical need is

proven by a medical record he wrote concerning Zantiz’s injuries on the date of

the alleged beating. Among other things, this record notes that there was “no

redness or bruising.” We cannot consider this record at the motion to dismiss

stage. Forbes cites cases where we have considered medical records in

reviewing either the dismissal of a prisoner’s in forma pauperis lawsuit as

frivolous or the denial of a motion for summary judgment based on qualified

immunity. But Forbes points to no cases where we have considered medical

records at the motion to dismiss stage. Evidence that is outside the pleadings

Forbes’s argument that Zantiz “must have suffered objective harm from the allegedly

6

inadequate treatment” also fails. He cites Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.

1993), for the proposition that “delay in medical care can only constitute an Eighth

Amendment violation if there has been deliberate indifference, which results in substantial

harm.” But here Zantiz is alleging not that Forbes provided him with delayed medical care,

but instead that Forbes denied him medical care altogether. Thus, we find Mendoza

inapposite. See Gobert, 463 F.3d at 349 n.30.

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cannot be considered for a motion to dismiss. See Fed. R. Civ. P. 12(d)

(providing that, for a motion to dismiss, “matters outside the pleadings” must

be excluded by the court, or the motion “must be treated as one for summary

judgment”).

II. Motion for Summary Judgment

On appeal, the summary judgment defendants raise the same arguments

that they raised below. First, they argue that the video conclusively shows

that Zantiz’s version of events in the dining hall is untrue. We disagree. As

the district court noted, the video shows only about nine seconds of the

interaction between Seal and Zantiz, during which time Seal handcuffs Zantiz

and leads him off-frame. The video continues for approximately twenty-two

additional seconds after Seal and Zantiz leave the frame. Moreover, the dining

hall’s exit is not visible in the video. Thus, the video shows nothing regarding

what happened between the time Seal and Zantiz leave the frame and the time

they exit the dining hall.

The summary judgment defendants argue that the video contradicts

Zantiz’s Spears testimony, in which he testified that “I put my hands behind

my back and while Mr. Mitchell was talking to me Lieutenant Seal came

behind me, placed handcuffs on me, and punched me in the side of the head,”

and that Zantiz then asked Mitchell why Seal was punching him. In contrast,

the video shows Seal handcuffing Zantiz, but it does not show Seal punching

Zantiz or Zantiz speaking to Mitchell after being handcuffed. But Zantiz’s

Spears testimony does not specifically state that he was punched immediately

after the handcuffs were applied, or that he spoke to Mitchell immediately

after this punch. The verified complaint is even less specific about the

timeline, stating only that Seal punched him after he was handcuffed, and

Zantiz spoke to Mitchell after that. Thus, we cannot say that the district court

disregarded a video that completely discredits Zantiz’s version of events.

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This situation is quite unlike that in Scott v. Harris, which held that the

court of appeals erred in adopting the plaintiff’s version of events when “[t]he

videotape quite clearly contradicts [the plaintiff’s] version of the story.” 550

U.S. at 378–81. Instead, the district court here carefully considered the video

and found that there was still a genuine issue of fact as to whether Seal

punched Zantiz in the dining hall. See Newman, 703 F.3d at 762 (holding that,

because there was “nothing in the three video recordings to discredit

[plaintiff’s] allegations,” plaintiff’s version of events controlled for summary

judgment purposes). We lack jurisdiction to review the district court’s factual

determination when it is not wholly contradicted by the video evidence.

Johnson v. Jones, 515 U.S. 304, 319–20 (1995); Luna, 773 F.3d at 718 (“We

may review the district court’s conclusion that issues of fact are material, but

not the conclusion that those issues of fact are genuine.” (internal quotation

marks and citation omitted)).

In the alternative, the summary judgment defendants argue that, given

the short amount of time that Seal and Zantiz spent in the dining hall, they

could not have intervened to protect Zantiz. A bystander liability claim like

this one requires that the bystander officers “(1) know[ ] that a fellow officer is

violating an individual’s constitutional rights; (2) ha[ve] a reasonable

opportunity to prevent the harm; and (3) choose[ ] not to act.” Whitley v.

Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (internal quotation marks omitted).

The summary judgment defendants argue that the second element is not met

because they could not have stopped Seal’s excessive use of force.

The district court did not specifically address this argument. But we

hold that it likely found a genuine issue of fact as to the speed of the encounter,

and thus the window of time in which to intervene. See Kovacic, 628 F.3d at

211 n.1 (“[W]e conduct an analysis of the record to determine what issues of

fact the district court likely considered genuine.” (internal quotation marks

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omitted)). Again, the video does not provide a complete view of the dining hall.

Zantiz’s verified complaint and Spears testimony do not definitively establish

how quickly the events in the dining hall took place. There is no other evidence

in the summary judgment record that is directly related to the timing of the

dining hall incident. But Zantiz alleges in his sworn complaint that Seal

“punched me on my left ear and twisted the cuffs and grabbed my shirt collar.”

Other staff members “clearly observed” this punch. Zantiz asked Mitchell why

Seal punched him, and Mitchell responded “[o]h well” and ignored him. At the

Spears hearing, Zantiz provided sworn testimony that Seal then forced him out

of the dining hall and, as they were going out the side door, punched him again.

We hold that the district court likely found that this evidence creates a

genuine dispute about the timing of events within the dining hall. Zantiz’s

sworn allegations, taken together, give rise to the inference that the events in

the dining hall proceeded slowly enough that the summary judgment

defendants could have intervened. Thus, this question of timing is material as

to whether the summary judgment defendants had a reasonable opportunity

to prevent Seal’s second punch and other uses of force following the first punch.

III. Discovery Order

All nine appellants appeal the discovery order. We conclude that this

appeal is moot as to the summary judgment defendants. The district court

determined that their qualified immunity defenses fail at the summary

judgment stage, and we affirm that holding. Thus, Zantiz is entitled to all

appropriate discovery as to the summary judgment defendants, even discovery

that does not relate to the qualified immunity defense.

As to the remaining appellants, we must determine whether we have

jurisdiction to review the discovery order. We have jurisdiction to review such

an order if it does not follow the two-step procedure that we have mandated in

qualified immunity cases. Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014).

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First, the district court must determine that the plaintiff’s well-pleaded facts,

taken as true, would overcome the qualified immunity defense. Id. at 485.

Second, “if the court remains unable to rule on the immunity defense without

further clarification of the facts, it may issue a discovery order narrowly

tailored to uncover only those facts needed to rule on the immunity claim.” Id.

(internal quotation marks omitted). Such an order must “identify any

questions of fact [the district court] need[s] to resolve before it would be able to

determine whether the defendants [are] entitled to qualified immunity.” Id. 7

We conclude that we have jurisdiction to review the discovery order here

because it did not fulfill either step of this analysis. First, the order did not

explicitly hold that Zantiz’s pleadings, taken as true, overcame the qualified

immunity defense. While some of the language in the discovery order implies

that the magistrate judge thought that the pleadings overcame the qualified

immunity defense, we have held that this holding must be made explicitly. Id.

at 485 n.2. 8

7 One added complication is that Seal, Rigdon, Warner, and Tullos have not yet filed

a motion to dismiss or motion for summary judgment based on the qualified immunity

defense, unlike in our previous cases dealing with the interlocutory appeal of discovery

orders. But all four of these appellants raised the qualified immunity defense in their

answer, and they all argued to the magistrate judge and the district court that Zantiz’s

discovery motion should be denied based on the qualified immunity defense. Further, a

district court need not rule on a motion to dismiss based on qualified immunity before issuing

a discovery order. Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 997 n.27 (5th Cir. 1995).

Accordingly, we hold that filing a motion to dismiss is not required before a defendant can

assert qualified immunity as a defense to a discovery order.

8 We note that the discovery order’s error in failing to perform the first step of Zapata

is moot as to Forbes because, in its later denial of Forbes’s motion to dismiss, the district

court ruled that Zantiz’s pleadings overcame Forbes’s qualified immunity defense. See Foster

v. City of Lake Jackson, 28 F.3d 425, 428 n.6 (5th Cir. 1994) (holding that appeal of an order

requiring defendants to “submit to discovery before adjudication of qualified immunity” was

mooted by district court’s subsequent ruling that defendants were not entitled to qualified

immunity). But, in denying the motion to dismiss, the district court did not determine

whether Forbes’s qualified immunity defense would fail on summary judgment. Thus, he

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The discovery order also fails the second step of Zapata. Even a “limited

discovery” order does not satisfy the second step if “the district court [does] not

identify any questions of fact it need[s] to resolve before it would be able to

determine whether the defendants [are] entitled to immunity.” Zapata, 750

F.3d at 484–85. Here, the discovery order fails under this standard because it

does not identify the questions of fact that needed to be resolved before the

qualified immunity issue could be addressed.

Thus, we conclude that the magistrate judge abused his discretion in

issuing a discovery order that did not perform either of the steps described in

Zapata. See Backe, 691 F.3d at 648 (finding abuse of discretion based on failure

to perform steps described in Zapata). However, any error is moot as to the

summary judgment defendants. 9

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order denying

Forbes’s motion to dismiss. We also AFFIRM its order denying summary

judgment to the summary judgment defendants (Mitchell, Cleland, Kennedy,

and Distefano). We DISMISS AS MOOT the summary judgment defendants’

appeal of the discovery order. We VACATE the discovery order as to Seal,

Rigdon, Warner, Tullos, and Forbes, and we REMAND with instructions to

apply the two-step procedure described in Zapata.

was still entitled to the application of Zapata’s second step limiting discovery, and his appeal

as to this second step is not moot.

9 And, again, the error in applying the first step is moot as to Forbes.

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E. GRADY JOLLY, Circuit Judge, dissenting in part:

An officer’s “mere presence at the scene, without more, does not by some

mysterious alchemy render him legally responsible under section 1983 for the

actions of a fellow officer.” Calvi v. Knox Cnty., 470 F.3d 422, 428 (1st Cir.

2006). Here, Zantiz has only produced competent summary judgment evidence

to suggest that the summary judgment defendants were present at the time he

was allegedly punched by Seal in the dining hall. He has provided no basis

from which a jury could reasonably conclude that these defendants were in a

position to come to his aid and prevent any additional excessive force. Cf. Hale

v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Accordingly, I respectfully dissent

from the majority’s holding denying the defendants summary judgment on the

basis of qualified immunity.

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