Armstrong v. Texas State Board of Barber Examiners

United States Court of Appeals,

Fifth Circuit.

No. 93-9095

Summary Calendar.

Louie ARMSTRONG, Plaintiff-Appellee,

v.

TEXAS STATE BOARD OF BARBER EXAMINERS, et al., Defendants,

William E. Maddox, et al., Defendants-Appellants.

Sept. 6, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before JOLLY, SMITH, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This action was filed in 1989 by Louie Armstrong alleging

various causes of action relating to the termination of his

employment with the Texas State Board of Barber Examiners. In lieu

of an answer, the defendants filed a motion to dismiss based, inter

alia, on qualified immunity. The motion was granted in part but

was denied as to the defense of qualified immunity. According to

the district court docket sheet, there was no activity in the case

until 1992 when the parties announced that the case had settled and

it was dismissed. Several months later, however, Armstrong,

asserting that the settlement had collapsed, moved to reopen the

case and to amend his complaint. Thereafter, the parties entered

a scheduling order, and Armstrong moved to compel the defendants to

respond to his discovery requests. The defendants then filed a

motion for summary judgment based on qualified immunity and a

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motion to stay discovery. The district court again denied the

claim of qualified immunity and the defendants filed their notice

of appeal.

In Phillips v. Montgomery County, 24 F.3d 736 (5th Cir.1994),

we held that defendants cannot fail to appeal the denial of

qualified immunity and then "restart the appellate clock by

refiling substantially the same motion." Here, it is clear that

the defendants' motion to dismiss and the motion for summary

judgment raise the same defense, that is, that they are entitled to

qualified immunity because the plaintiff has not asserted the

deprivation of a constitutional right. Further, neither motion

relies on material outside the pleadings; nor were any new

pleadings filed after the first motion to dismiss.

In the end, the two motions are only distinguishable because

they are brought under different rules and are guided by different

standards of review.1 These asserted differences are, however,

illusory. The motion to dismiss, brought before any discovery was

conducted in the case, is primarily a vehicle to test the

sufficiency of the pleadings as to qualified immunity. See Jackson

v. City of Beaumont, 958 F.2d 616, 168 (5th Cir.1992). That motion

was denied. The second motion, although styled a motion for

summary judgment was simply another motion addressing the

pleadings, as evidenced by the defendants' motion to stay

discovery. Under these unique circumstances, the two motions are

1

This is the only difference identified by the defendants in

the supplemental brief requested by the court to address the

implications of Phillips v. Montgomery County.

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substantially the same. Accordingly, this appeal is untimely and

is therefore

DISMISSED.

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