distinguishing from Edwards because, among other things, the defendants “did not file their motion one day before trial and three months after the deadline”
How later courts described this case
- distinguishing from Edwards because, among other things, the defendants “did not file their motion one day before trial and three months after the deadline”
Written by the judges who cited it.
The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-40474
GREGORY MOORE,
Plaintiff-Appellee
versus
JANIE COCKRELL, Etc., ET AL,
Defendants
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION; CHARLES D. LIGHTFOOT, Major of
Correctional Officers - Beto One Unit Classification; CORNELIUS
E. SMITH, Captain of Correctional Officers; SHELY S. BALDWIN,
Correctional Officer
Defendants-Appellants
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
6:03-CV-82-LED
--------------------
Before KING, Chief Judge, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
This interlocutory appeal requires us to determine whether
the district court erred by ruling that Defendants-Appellants’
*
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that this opinion should not be published and is not precedent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.
1
motion for summary judgment was untimely. Determining that it
did so err and because of the peculiar circumstances under which
the alternative merits determination was made, we vacate and
remand for further proceedings consistent with this opinion.
BACKGROUND1
Plaintiff-Appellee Gregory Moore (“Moore”), an inmate of the
Texas Department of Criminal Justice, Institutional Division
(“TDCJ-ID”), filed this civil rights lawsuit under 42 U.S.C. §
1983 against various prison officials asserting that they were
deliberately indifferent to threats of physical violence towards
Moore made by fellow prisoners. The threats stemmed from the
discovery by his fellow inmates that Moore was serving a sentence
for child molestation.
Apparently, in May 2002, an individual using the name
Rudolph Hess posted information on an internet bulletin board
urging reprisals against sex offenders.2 It appears that inmates
1
Because the district court opinion does not include a
summary of the facts, the factual background presented here
represents our best understanding of the facts of the case based
on the parties’ submissions to this Court. We do not in any way
intend to resolve any disputed factual matters that may exist.
As we note below, because Defendants-Appellants immediately
appealed the district court’s denial of their motion for summary
judgment on the basis of qualified immunity, Plaintiff-Appellee
has never had a chance to respond to their motion for summary
judgment. When Plaintiff-Appellee does have his chance to
respond, he may present evidence supporting facts that are
different than the facts as we present them here.
2
Moore alleges that Hess was a pseudonym for a prison guard,
but he does not specifically allege that one of the named
2
in the Beto Unit, where Moore was housed, became aware of this
posting. Some inmates also discovered which of their fellow
inmates had been convicted of sex offenses. Moore alleges that
Defendant-Appellant Officer Shely Baldwin told prison gang
members that Moore had been convicted of child molestation.
Soon after the Hess posting, an Attorney named Bill Habern
wrote a letter to Janie Cockrell, Director of the TDCJ-ID,
reminding her that the TDCJ has a duty to protect its prisoners.
In response, Larry Todd, spokesperson for the TDCJ, told a
reporter for the Dallas Morning News that if a sex offender
inmate is harassed or threatened, the TDCJ would transfer the
inmate to another unit or place the inmate in protective custody.
On October 2, 2002, several gang members physically
assaulted inmates on the Beto Unit who had been labeled as
informants, including at least one sex offender. As a result of
these attacks, the Beto Unit was placed in lockdown.
Between the October 2, 2002 lockdown and January 8, 2003,
when Moore was ultimately involved in a violent altercation with
an inmate named Clifton Holiday, Moore made four life
endangerment claims. In each claim, he informed prison officials
that gang members housed within the Beto Unit were threatening
with physical violence inmates who were imprisoned for sexual
offenses, including Moore. Moore specifically named Holiday as
Defendants-Appellants posted the message.
3
one of the gang members making such threats in two of his life
endangerment claims.
As described by Defendants-Appellants, the TDCJ-ID procedure
for investigating and evaluating a life endangerment claim is as
follows. The claim is logged into the unit classification office
in the offender protection log and it is assigned to a ranking
officer to conduct an investigation. After the investigation is
completed, it is returned to the unit classification office,
which sets the claim for a hearing before the next available Unit
Classification Committee (“UCC”).
A UCC is made up of three voting members: a chairperson, a
unit security representative, and a person from the unit’s
treatment team. The UCC reviews and makes recommendations
regarding an inmate’s custodial classification while at the unit.
No single individual at the unit, including the senior warden,
has the authority to change the custodial classification of an
inmate. The UCC can change an inmate’s classification by
majority vote. The UCC may recommend a housing change, placement
in safekeeping, placement in protective custody, or a unit
transfer. However, the State Classification Committee (“SCC”) in
Huntsville has to approve the UCC’s recommendations.3 It also
3
While Moore acknowledges the UCC and SCC and their role in
unit transfers, he also appears to contend that a UCC panel has
the ability to override/disregard the SCC and/or that an
individual member of a UCC panel has the ability to dictate the
conclusions of the panel.
4
appears that an individual prison officer at least sometimes has
the ability to place an inmate who is in danger in transient
housing, pending a formal life endangerment investigation.
Moore’s first life endangerment claim, filed on October 12,
2002, alleged that inmate Richard Tidwell was the instigator of a
plan to rid the Beto Unit of sex offenders. Moore said that he
overheard inmate Benton Morgan mention Moore’s name to Holiday,
stating that Moore was next on the list to leave the unit.
Defendant-Appellant Captain Cornelius Smith investigated Moore’s
October 12, 2002 claim, and on October 16, 2002, Moore came
before the Beto Unit Classification Committee for a life
endangerment review. The members of that UCC were Defendant-
Appellant Major Charles Lightfoot and two non-defendants.
The UCC voted unanimously to place Moore in transient status
when the lockdown was lifted, and recommended a unit transfer.
However, the unit transfer was denied by the SCC on October 24,
2002 because of a lack of corroborating evidence. A different
UCC, consisting of Major Lightfoot and two other non-defendants,
informed Moore on October 28, 2002 that the SCC had denied his
request for a unit transfer. On that same date, Moore was
assigned to N-Wing, which is the Beto Unit’s transient status
housing. Moore remained there from October 28, 2002 to November
5, 2002.
When prison officials attempted to move Moore from transient
housing to his new housing assignment, he refused to move. As a
5
result, he was placed in Pre-Hearing Detention on November 5,
2002.
On November 6, 2002, Moore brought his second life
endangerment claim. In that claim, Moore alleged new
developments since his October 16, 2002 UCC hearing, including
that inmate Morgan had come to his cell and threatened him.
Moore again requested a unit transfer because he believed his
life was in danger. Defendant-Appellant Captain Cornelius Smith
investigated Moore’s second claim and a UCC was convened on
November 8, 2002. The UCC was composed of three non-defendants.
The UCC voted unanimously to table Moore’s life endangerment
review until a prison official, Lt. J.S. Clark, could provide
additional information.
On November 8, 2002, prison officials moved Moore from Pre-
Hearing Detention to overflow transient status housing in X-Wing.
He remained there until December 23, 2002.
On November 13, 2002, the UCC reconvened the November 8,
2002 hearing because it had received the additional information
from Lt. Clark. This UCC was also composed of three non-
defendants. They voted unanimously to deny Moore’s request for a
transfer because of a lack of corroborating evidence.
Undeterred, Moore then brought a grievance, which prison
officials treated as another life endangerment claim. It appears
that Moore never had a UCC hearing for this claim. Instead, Beto
Unit Classification Chief Sun Berg included Moore in a
6
recommendation that she sent to the SCC after a November 18, 2002
UCC hearing for three other convicted sex offenders. In this
recommendation to the SCC, Berg recommended transfers for Moore
and the other three sex offenders.
However, the SCC did not follow Berg’s recommendation.
Instead, it ordered transfers for five inmates who were
threatening the convicted sex offenders rather than transferring
the sex offenders themselves to safekeeping. The five inmates
transferred were Richard Tidwell, Dustin Dixon, Robert Leifester,
Benton Morgan, and John Wheeler.
After these five inmates had been transferred, an SCC
member, V. Sineguare, sent a memo to Beto Unit Classification
Chief Berg on December 17, 2002 directing her to transfer Moore
and the three other sex offender inmates from transient housing
back to General Population.
In the meantime, on December 12, 2002, Moore’s attorney,
John Bennett, notified TDCJ-ID officials including Director
Cockrell and the Beto Unit Warden that Moore was still in danger
from inmate gang members even though he was in transient housing.
Bennett requested, to no avail, that the officials do something
more to protect Moore, such as transferring him to a safekeeping
unit.
Additionally, Moore alleges that on December 17, 2002, a
Beto Unit classification officer sent Director Cockrell a memo
outlining the history of threats to Moore’s safety between
7
October 12, 2002, and December 17, 2002. The memo specifically
identified Holiday as a threat. Moore further alleges that an
individual in Director Cockrell’s office requested a second copy
of this memo on December 18, 2002.
On December 23, 2002, a UCC composed of Defendant Major
Lightfoot and two non-defendants informed Moore of the SCC’s
decision to release him back to General Population.
From December 23, 2002 to January 8, 2003, Moore was housed
in M Wing, in the general population. Moore alleges that once he
returned to the general population he immediately started to
receive death threats and that he relayed them to prison
officials. Moore further alleges that Holiday directly
threatened him on December 25, 2002, and that he again reported
the threat.
On January 5, 2003, Moore filed his fourth life endangerment
claim. In this claim, Moore alleged that Holiday and another
inmate, Frank Williams, had threatened him and that his life was
in danger. Moore requested a transfer out of the Beto Unit
because the other inmates had become aware of his conviction for
a sex offense. Prison official Lt. Williams completed the
investigation of Moore’s fourth claim on January 8, 2003. On
that same day, Moore signed a waiver of his claim and of his
request for a unit transfer. Moore now asserts that a prison
official named Timmons coerced him into rescinding his claim.
Later that day, at approximately 6 p.m., Holiday and Moore
8
had a violent encounter in the north-side Dining Hall. Moore
alleges that he was attacked and that he suffered a “brutal
stabbing.” Prison officials describe the encounter as a
fistfight and his injuries as minor. Holiday contended that
Moore struck him first, but he also admitted that he did not like
Moore because of his status as a sex offender.
After the encounter with Holiday, Moore was again moved to
transient status where he remained until February 13, 2003.
Because of the fight, prison officials initiated another life
endangerment investigation, which was completed on January 10,
2003. On January 13, 2003, a UCC composed of three non-
defendants voted unanimously to recommend a unit transfer and
they asked the SCC to review Moore for possible placement in
safekeeping status.
On February 13, 2003, Moore was transferred from the Beto
Unit to the Michael Unit.
PROCEEDINGS
Moore brought this action alleging that the officials named
were all deliberately indifferent to the threats of violence that
he faced. Pursuant to an amended scheduling order, the trial was
scheduled to commence on April 13, 2004. The prison officials
involved in this appeal filed a motion to dismiss, which was
9
denied in relevant part on March 5, 2004.4 The prison officials
then filed a motion for summary judgment on April 5, 2004. The
district court, in an order dated April 8, 2004, determined that
this motion was untimely. The district court also found that
even assuming arguendo that the motion had been timely filed, the
prison officials had not overcome their summary judgment burden
given that genuine issues of material fact existed as to preclude
the granting of the motion.
The district court ruled on the summary judgment motion
within three days of its filing and long before the expiration of
the time allotted under the Local Rules and the Federal Rules of
Civil Procedure for Moore to file a response.5
The very next day, April 9, 2004, the prison officials filed
this interlocutory appeal. By doing so, the prison officials
invoked the jurisdiction of this Court before Moore’s time to
respond to the summary judgment motion had expired. As a result,
Moore did not file a response to Defendant’s motion for summary
judgment before the district court lost jurisdiction by virtue of
Appellants’ notice of appeal.
JURISDICTION
4
On March 19, 2004, the district court ruled upon the last of the
motions to dismiss, which related to defendants who are not part of this
appeal.
5
The Local and Federal Rules provided Moore with at least
15 days to respond after he had been served with Defendants’
motion for summary judgment. See n.8 and n.9, infra.
10
This Court has jurisdiction to review the denial of summary
judgments seeking qualified immunity in an interlocutory appeal
under the “collateral order” doctrine, as explained by the
Supreme Court in Mitchell v. Forsyth. 472 U.S. 511, 530 (1985).
Because qualified immunity implicates the right not to stand
trial, denial of a qualified immunity claim is final in that the
right to avoid trial cannot be vindicated by later appeal. Id.
at 526-27. Our jurisdiction in such cases is not unlimited,
however. As the qualified immunity analysis is “significantly
different from the questions underlying [a] claim on the merits,”
and questions of “evidence sufficiency” are not appealable,
Johnson v. Jones, 515 U.S. 304, 314 (1995), we may only review a
denial of qualified immunity “to the extent that it turns on an
issue of law.” Mitchell, 472 U.S. at 530.6
DISCUSSION
I.
We must first determine whether the district court erred by
6
Moore’s contention that this Court does not have
jurisdiction to hear this appeal is without merit. He contends
that this case is like Edwards v. Cass County, Texas, in which we
held that we normally do not have jurisdiction to hear an
interlocutory appeal when the district court declines to consider
a motion for summary judgment asserting qualified immunity
because it is untimely. 919 F.2d 273, 275 (5th Cir. 1990). In
the instant case, however, the district court ruled both that
Defendants-Appellants’ motion for summary judgment was untimely
and held in the alternative that it was without merit. Because
the district court in the instant case has ruled on the merits of
Defendants-Appellants’ assertion of qualified immunity,
Edwards does not apply.
11
holding that the prison officials failed to timely submit their
motion for summary judgment. Because district courts are vested
with broad discretion to determine their own dockets as
warranted, the abuse of discretion standard governs. Edwards v.
Cass County, Texas, 919 F.2d 273, 275 (5th Cir. 1990).
The district court cited Edwards for the proposition that
“the refusal to allow filing of a substantive motion on the eve
of trial is normally within the district court’s discretion.” It
then held that the prison officials’ motion was untimely because
“the moving Defendants waited until one week before the scheduled
trial to file a lengthy motion for summary judgment, together
with over 150 pages of exhibits.”
However, the facts of the instant case are distinguishable
from Edwards. In Edwards, the district court had issued a
scheduling order setting a deadline of March 5, 1990 for the
filing of all pre-trial motions, including motions for summary
judgment. Id. at 274. With a jury trial set to begin on June 5,
1990, the defendants filed a motion for leave to file an out-of-
time motion for summary judgment asserting qualified immunity on
June 4, 1990. Id. The district court denied the motion, and we
affirmed, stating that
a court's refusal to allow the filing of a substantive
motion on the eve of trial three months after the
expiration of a deadline (especially where no extension
has been sought) should normally be deemed well within
the court's discretion. In other words, a district court
seldom would be obliged to interrupt the orderly
12
proceedings of its docket to rule on so critical an issue
where the same easily could have been presented at an
earlier date.
Id. at 275-76 (emphasis added).
In contrast to Edwards, the district court never issued a
scheduling order in the instant case. Without such an order, the
prison officials were not sufficiently put on notice that a
motion filed on April 5, 2004 would be considered untimely. The
motion was filed within three weeks of the district court’s
ruling on the last motion to dismiss, and the district court had
previously moved the trial date back to accommodate pre-trial
proceedings.7
These facts distinguish the instant case from Edwards.
Unlike the defendants in Edwards, Defendants-Appellants did not
file their motion one day before trial and three months after the
deadline for filing pre-trial motions set in a scheduling order.
Moore also contends that the district court’s ruling that
the prison officials’ motion was untimely can be supported by the
Eastern District of Texas’s Local Rules of Civil Procedure. The
Local Rules provide that a party opposing a dispositive motion is
7
Between March 2, 2004 and March 9, 2004, with the trial
then scheduled to commence on March 16, 2004, the defendants then
in the case filed various motions to dismiss. The defendants
contemporaneously filed a motion to stay pretrial hearing and
trial setting, which the court granted, resetting the trial date
for April 13, 2004. Defendants-Appellants filed a similar motion
on April 5, 2004, along with their motion for summary judgment,
to no avail.
13
provided a period of twelve days from the date the motion was
served in which to serve and file a response, with an additional
three days added pursuant to Rule 6(e) of the Federal Rules.8
See United States District Court for the Eastern District of
Texas, Local Rule CV-7(e), available at www.txed.uscourts.gov/
(as of July 31, 2005).9 The prison officials filed their motion
on April 5, 2004, and the trial was scheduled to commence on
April 13, 2004, so Moore’s response to the prison officials’
motion would have been due well after the trial had begun.
Nevertheless, neither the Local Rules nor any order from the
district court provided the prison officials with a fixed
deadline for filing their motion for summary judgment. Local
Rule CV-7(e) sets forth the amount of time that a party opposing
8
Fed. R. Civ. P. 6(e) provides:
Whenever a party has the right or is required to do some
act or take some proceedings within a prescribed period
after the service of a notice or other paper upon the
party and the notice or paper is served upon the party
under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added
to the prescribed period.
9
Local Rule CV-7(e) provides:
A party opposing a motion has 12 days from the date the
motion was served in which to serve and file a response
and any supporting documents, after which the court will
consider the submitted motion for decision. Except for
motions served under Fed.R.Civ.P. 5(b)(2)(A), three days
shall be added to the prescribed time period pursuant to
Fed.R.Civ.P. 6(e). Any party may separately move for an
order of this court lengthening or shortening the period
within which a response may be filed.
14
a motion has in which to respond, but it does not definitively
set a deadline for filing a motion for summary judgment asserting
qualified immunity.10 To the contrary, the rule itself contains
flexibility in the form of a clause allowing for the response
time period to be lengthened or shortened. As a result, it does
not provide parties with a definitive deadline for filing
motions. Without a definitive deadline, the prison officials
were not given sufficient warning that their motion for summary
judgment would be considered untimely if filed on April 5, 2004.
Because the district court did not give sufficient notice to
the parties regarding the deadline for filing motions, in the
form of a scheduling order, a local rule, or otherwise, we find
that under the unique circumstances presented here, the district
court abused its discretion by ruling that the prison officials’
motion for summary judgment was untimely.
II.
Ordinarily we would next consider whether the district court
erred in its alternative holding that the prison officials failed
to show that they were entitled to summary judgment on the basis
10
In contrast, the Western District of Texas’s Local Rules
of Civil Procedure provide a fixed date by which defendants must
assert qualified immunity. See United States District Court for
the Western District of Texas, Local Rule CV-12, available at
http://www.txwd.uscourts.gov/rules/online/default.asp (as of July
31, 2005) (requiring defendants to assert qualified immunity
within 30 calendar days of their initial pleading or, if asserted
in response to allegations made in an amended complaint, within
20 days of the date the amended complaint was filed).
15
of qualified immunity. Indeed, Appellants insist that they are
entitled to summary judgment on their qualified immunity claims.
The panel is loathe, however, to make a final determination on
the qualified immunity claims at this time. This is because, as
explained previously, Moore did not have the opportunity to
respond to Defendants-Appellants’ motion for summary judgment and
was deprived the time to respond as provided in the rules. This
case thus presents an unusual procedural posture. Given this, we
will refrain from squarely addressing the merits of the prison
officials’ assertions of qualified immunity at this juncture.
However, some brief additional commentary is necessary. On
remand, the district court should heed particular attention to
our en banc decision in Kinney v. Weaver, 367 F.3d 337 (5th Cir.
2004), of which all three members of this panel belonged to the
majority. In Kinney, we commented that “before engaging in the
inquiry into whether the [prison] official unreasonably violated
clearly established law, we should first determine whether the
challenged conduct, viewed in the light most favorable to the
plaintiff, would actually amount to a violation of federal law in
the first place.” 367 F.3d at 550. While the referenced
language actually was stated in the context of addressing our
standard of review, on remand, the district court must be mindful
of the specific allegations that have been brought against each
prison official, and must ask whether Moore - in light of our
16
precedent - has alleged conduct that expressly runs afoul of the
Constitution. If he has not, then the qualified immunity inquiry
need go no further. The record as presented is not pellucid as
to whether Moore has alleged conduct that is considered
constitutionally infirm; however, we need go no further, as we
believe the district court should be afforded the opportunity to
make this determination in the first instance after Moore has an
opportunity to respond to the motion for summary judgment with
whatever summary judgment arguments and summary judgment evidence
he might properly present to the District Court. Accordingly,
the panel is of the view that this case should be remanded and
considered under proper procedures.
VACATED AND REMANDED.
17