Carswell v. Camp

Case: 21-10171 Document: 00516562343 Page: 1 Date Filed: 11/30/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

November 30, 2022

No. 21-10171 Lyle W. Cayce

Clerk

Gwendolyn Carswell, individually and as dependent administrator of

and on behalf of The Estate of Gary Valdez Lynch III and

Gary Valdez Lynch III’s Heirs at Law,

Plaintiff—Appellee,

versus

George A. Camp; Jana R. Campbell; Helen M. Landers;

Kenneth R. Marriott; Kolbee A. Perdue; Teri J.

Robinson; Vi N. Wells; Scotty D. York,

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas

3:20-CV-2935

Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The petition for panel rehearing is DENIED. Because no member of

the panel or judge in regular active service requested that the court be polled

on rehearing en banc, the petition for rehearing en banc is DENIED. On our

own motion, we withdraw our prior opinion, 37 F.4th 1062, and issue the

following in its place.

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The question presented is whether a district court can deny a motion

to dismiss based on qualified immunity through a boilerplate scheduling

order. We hold no.

I.

Gary Lynch was arrested on an outstanding warrant and booked into

the Hunt County, Texas jail on February 12, 2019. Seven days later, because

of a gas leak, the jail staff evacuated all prisoners from the facility and

temporarily housed them elsewhere. Jail staff held Lynch in the Tarrant

County jail while repairs occurred and returned him to the Hunt County

facility on the evening of February 22. The next morning, Lynch was

discovered dead in his cell. Following an autopsy, a doctor concluded Lynch

died from aortic valve endocarditis with myocardial abscess.

Plaintiff-Appellee Gwendolyn Carswell is Lynch’s mother. She sued

Hunt County and numerous county employees under 42 U.S.C. § 1983 and

Monell v. Department of Social Services of the City of New York, 436 U.S. 658

(1978). She alleged the individual defendants knew Lynch was suffering from

a heart condition but failed to treat him. The individual defendants moved to

dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting qualified

immunity. On January 25, 2021, the district court denied that motion and

entered its “standard QI scheduling order.” That order is the subject of this

appeal. It provided, in relevant part:

Any pending motions to dismiss on the basis of qualified

immunity are denied without prejudice. See Shultea v. Wood,

47 F.3d 1427, 1431–34 (5th Cir. 1995) (en banc) (qualified

immunity must be raised by filing answer). Any defendant

desiring to assert qualified immunity who has not already done

so by way of answer must file an answer asserting qualified

immunity within 14 days of the date of this Order. Except as set

forth below, all party discovery is stayed as to any defendant

who asserts qualified immunity. Discovery is not stayed as to a

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defendant asserting qualified immunity as to that person’s

capacity as a witness to the extent that there is any other

defendant not asserting qualified immunity.

The individual defendants complied with the order and filed answers and

affirmative defenses. But they also noticed an immediate appeal of the

scheduling order. Carswell moved to dismiss the appeal for lack of

jurisdiction, arguing the scheduling order was not an appealable collateral

order because the district court had not ruled on qualified immunity. We

carried that motion with the case.

In the meantime, back in district court, the individual defendants

moved to stay all discovery and all proceedings. They argued that “[a]ll

discovery in this matter should be stayed against all Defendants, including

Hunt County, and all proceedings in this case should be stayed, pending

resolution of the Individual Defendants’ assertions of qualified immunity.”

The district court denied defendants’ motion. In its October 8 order,

the court “address[ed] the motion at greater length than it customarily would

devote to what is essentially a motion to stay.” In so doing, it explained how

(in its view) the January 25 scheduling order “attempts to follow the

choreography of the Fifth Circuit’s QI dance.” Specifically:

[The scheduling order] requires any defendant wanting to

assert QI to do so by answer, rather than by motion to

dismiss; . . . it requires the plaintiff to file a rule 7 reply to any

assertion of qualified immunity. If defendants believe QI can be

resolved based on the pleadings, there is a deadline for filing a

motion for summary judgment on that basis; if the plaintiff

believes discovery is necessary to resolve the QI defense, he or

she may raise that issue by way of a Rule 56(d) motion for

discovery in response to the defendant’s motion for summary

judgment. Significantly, unless the Court allows narrowly

tailored discovery on QI, party discovery as to the QI

defendants is stayed.

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On October 13, in district court, Carswell filed an “advisory to the court

concerning depositions” indicating that, on the Monell claim, she wished to

depose all eight of the individual defendants asserting qualified immunity.

She reminded the court that she had previously served all eight with

deposition notices. She explained she wished “to notice these depositions

again and proceed consistent with the Court’s October 8, 2021, Order.”

Appellants moved in this court to stay discovery pending appeal. We granted

the stay and subsequently heard oral argument.

II.

“Jurisdiction is always first.” Arulnanthy v. Garland, 17 F.4th 586, 592

(5th Cir. 2021) (quotation omitted). Under the collateral order doctrine, we

have jurisdiction to review orders denying qualified immunity. See Backe v.

LeBlanc, 691 F.3d 645, 647–49 (5th Cir. 2012); Mitchell v. Forsyth, 472 U.S.

511, 526–27 (1985). Likewise for district court orders “declin[ing] or

refus[ing] to rule on a motion to dismiss based on a government officer’s

defense of qualified immunity.” Zapata v. Melson, 750 F.3d 481, 484 (5th Cir.

2014). Such orders are “tantamount to . . . order[s] denying the defendants

qualified immunity.” Ibid.

The collateral order doctrine permits immediate appeals of these

orders because a defendant’s entitlement to qualified immunity must be

determined “at the earliest possible stage of the litigation.” Ramirez v.

Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021) (per curiam). That’s because

qualified immunity is more than “a mere defense to liability.” Pearson v.

Callahan, 555 U.S. 223, 237 (2009) (quotation omitted). It’s also “an

immunity from suit.” Ibid. (quotation omitted). And one of the most

important benefits of the qualified immunity defense is “protection from

pretrial discovery, which is costly, time-consuming, and intrusive.” Backe,

691 F.3d at 648; see also Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986)

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(per curiam) (a “refusal to rule on a claim of immunity” deprives a defendant

of his “entitlement under immunity doctrine to be free from suit and the

burden of avoidable pretrial matters”).

We have jurisdiction over the scheduling order here because the

district court refused to rule on qualified immunity “at the earliest possible

stage of the litigation.” Ramirez, 3 F.4th at 133. Defendants asserted qualified

immunity in their motion to dismiss. That motion was the earliest possible

opportunity for the district court to resolve the immunity question. It

declined to do so. Instead, it required defendants to assert their qualified

immunity defense by way of answer. And it postponed ruling on the

immunity issue until summary judgment. That “effectively . . . denied

[defendants] the benefits of the qualified immunity defense” and “vest[ed]

this court with the requisite jurisdiction to review the discovery order.”

Wicks v. Miss. State Emp. Servs., 41 F.3d 991, 994 (5th Cir. 1995).

III.

We review the scheduling order for abuse of discretion. Backe, 691

F.3d at 649. We hold the district court abused its discretion by deferring its

ruling on qualified immunity and subjecting the immunity-asserting

defendants to discovery in the meantime. See ibid. Where public officials

assert qualified immunity in a motion to dismiss, a district court must rule on

the motion. It may not permit discovery against the immunity-asserting

defendants before it rules on their defense. See id. at 648 (It is “precisely the

point of qualified immunity . . . to protect public officials from expensive,

intrusive discovery until and unless the requisite showing overcoming

immunity is made.” (second emphasis added)).

It is true that to ensure qualified immunity can be decided at the

earliest possible time, we have authorized “discovery narrowly tailored to

rule on [defendants’] immunity claims.” Backe, 691 F.3d at 649; see also Lion

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Boulos v. Wilson, 834 F.2d 504, 508–09 (5th Cir. 1987) (first articulating this

limited-discovery procedure). We’ve described that limited-discovery

process as “a careful procedure,” which permits a district court to “defer its

qualified immunity ruling if further factual development is necessary to

ascertain the availability of that defense.” Zapata, 750 F.3d at 485 (quoting

Backe, 691 F.3d at 648). The district court must first find that the plaintiff has

pleaded “facts which, if true, would overcome the defense of qualified

immunity.” Ibid. (quotation omitted). If it still finds itself “unable to rule on

the immunity defense without further clarification of the facts,” ibid.

(quotation omitted), then we allow the district court to order discovery

“narrowly tailored to uncover only those facts needed to rule on the

immunity claim,” Wicks, 41 F.3d at 994 (quoting Lion Boulos, 834 F.2d at

507–08).

Three points about this “careful procedure” bear emphasis. First, its

purpose is only to allow the district court to rule on the defendant’s assertion

of QI; its purpose is not to provide a backdoor for plaintiffs to circumvent the

defendant’s immunity from suit. Backe, 691 F.3d at 649. Second, where the

QI-asserting official determines that any pre-ruling discovery sought or

ordered in the district court crosses the line from permissible Lion Boulous

discovery to impermissible vitiation of the official’s immunity from suit, the

collateral order doctrine authorizes an immediate appeal like the one we

entertain today. Ramirez, 3 F.4th at 133. And third, Lion Boulos and its

progeny must be understood in light of subsequent Supreme Court

precedent. The Supreme Court has now made clear that a plaintiff asserting

constitutional claims against an officer claiming QI must survive the motion

to dismiss without any discovery.

On the lattermost point, consider Ashcroft v. Iqbal, 556 U.S. 662

(2009). There the district court gave the plaintiff discovery before ruling on

the officials’ motion to dismiss for qualified immunity. See id. at 670. The

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plaintiff tried to defend that discovery on the ground that “the Court of

Appeals ha[d] instructed the district court to cabin discovery in such a way

as to preserve petitioners’ defense of qualified immunity as much as possible

in anticipation of a summary judgment motion.” Id. at 684 (quotation

omitted). The Supreme Court had none of it. Instead, it reaffirmed its prior

holding “that the question presented by a motion to dismiss a complaint for

insufficient pleadings does not turn on the controls placed upon the discovery

process.” Id. at 684–85 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559

(2007)). And the Court made a point of emphasizing that its “rejection of the

careful-case-management approach is especially important in suits where

Government-official defendants are entitled to assert the defense of qualified

immunity.” Id. at 685. It concluded the respondent was “not entitled to

discovery, cabined or otherwise.” Id. at 686.

Thus, Iqbal squarely prohibits interpreting our “careful procedure”

as allowing tailored discovery before a district court rules on an official’s

motion to dismiss. When defendants assert qualified immunity in a motion to

dismiss, the district court may not defer ruling on that assertion. It may not

permit discovery—“cabined or otherwise”—against immunity-asserting

defendants before it has determined plaintiffs have pleaded facts sufficient to

overcome the defense. Ibid. The rule is that “a defendant’s entitlement to

qualified immunity should be determined at the earliest possible stage of the

litigation”—full stop. Ramirez, 3 F.4th at 133 (citing Mitchell, 472 U.S. at

526–27).

None of this means, of course, that the QI determination must be

made once-and-for-all at the motion-to-dismiss stage. Today we only hold

that where the pleadings are insufficient to overcome QI, the district court

must grant the motion to dismiss without the benefit of pre-dismissal

discovery. Similarly, where the pleadings are sufficient to overcome QI, the

district court must deny the motion to dismiss without the benefit of pre-

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dismissal discovery. In the latter scenario, however, our precedent gives the

defendant-official at least two choices after his motion to dismiss is denied.

First, the defendant can immediately appeal the district court’s denial under

the collateral order doctrine. See Backe, 691 F.3d at 647–49; Mitchell, 472 U.S.

at 526–27. Or second—à la Lion Boulos and its progeny—the defendant can

move the district court for discovery limited to the factual disputes relevant

to whether QI applies, then reassert QI in a summary judgment motion.

Hutcheson v. Dallas Cnty., 994 F.3d 477, 481 (5th Cir. 2021) (“Before limited

discovery is permitted, a plaintiff seeking to overcome QI must assert facts

that, if true, would overcome that defense.”). Why does the defendant alone

enjoy this choice? Because only the defendant-official enjoys qualified

immunity from suit. See Iqbal, 556 U.S. at 685 (“The basic thrust of the

qualified-immunity doctrine is to free officials from the concerns of litigation,

including avoidance of disruptive discovery.” (emphasis added) (quotation

omitted)).

IV.

Carswell offers three additional points in defense of the scheduling

order. Each is unavailing.

A.

Carswell first argues the district court did not refuse to rule on

qualified immunity. The district court, for its part, admitted that it

“require[d] any defendant wanting to assert QI to do so by answer, rather

than by motion to dismiss.” But Carswell says this was “the opposite of a

refusal or failure to rule” because the “district court clearly indicated it

would timely address Individual Defendants’ qualified immunity defense.”

All this gives short shrift to the requirement that qualified immunity

must be adjudicated at the earliest possible opportunity. See Ramirez, 3 F.4th

at 133. “Unless the plaintiff’s allegations state a claim of violation of clearly

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established law, a defendant pleading qualified immunity is entitled to

dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526

(emphasis added). The Supreme Court has repeatedly made clear that “the

driving force” behind qualified immunity is “a desire to ensure that

insubstantial claims against government officials will be resolved prior to

discovery,” and it has “stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.” Pearson, 555 U.S. at 231–

32 (emphasis added).

The district court declined to rule on qualified immunity at the

motion-to-dismiss stage. It deferred answering that question until the

summary-judgment stage. That is, ipso facto, a refusal to rule at the earliest

possible stage in litigation. It does not matter that the court promised to rule

promptly once it arrived at the next stage of litigation.

B.

Carswell next defends the scheduling order because it stayed

discovery as to qualified immunity. Specifically, the court stayed “all party

discovery . . . as to any defendant who asserts qualified immunity,” but not

“as to a defendant asserting qualified immunity as to that person’s capacity

as a witness to the extent that there is any other defendant not asserting

qualified immunity.” So the district court would have allowed Carswell to

proceed with discovery on her Monell claim, including by noticing

depositions for all eight of the individual defendants asserting qualified

immunity.

Iqbal squarely forecloses that, too. Responding to concerns about the

burdens litigation imposes on public officials, the Court explained:

It is no answer to these concerns to say that discovery for

petitioners can be deferred while pretrial proceedings continue

for other defendants. It is quite likely that, when discovery as

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to the other parties proceeds, it would prove necessary for

petitioners and their counsel to participate in the process to

ensure the case does not develop in a misleading or slanted way

that causes prejudice to their position. Even if petitioners are

not yet themselves subject to discovery orders, then, they

would not be free from the burdens of discovery.

Iqbal, 556 U.S. at 685–86. In other words, the Court ruled out even

“minimally intrusive discovery” against official defendants before a ruling

that plaintiff had met his burden to overcome the qualified immunity defense

at the pleading stage. Id. at 686.

Carswell responds that “Monell discovery presents no undue burden

to the Individual Defendants because they would be required to participate

as witnesses in discovery even if they had not been named as defendants.”

Red Br. at 30. We disagree for three reasons.

First, there are significant differences between naming an individual

defendant and then deposing him in two capacities (one personal and the

other Monell/official) and not suing the individual and deposing him only in

his Monell/official capacity. The former puts the individual’s own money on

the line. And the dual-capacity defendant must be particularly careful in a

deposition about how his answers can be used against him in not one but two

ways. So the stakes differ substantially. Carswell cannot elide these

differences by saying the defendant would have to testify either way.

Second, it’s no answer to say the defendant can be deposed twice—

once on Monell issues (before the district court adjudicates the immunity

defense) and once on personal-capacity issues (afterwards). It only

exacerbates the burdens of litigation to make a defendant sit for two

depositions instead of one. And it turns qualified immunity on its head by

doubling the “heavy costs” of litigation. Iqbal, 556 U.S. at 685.

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Third, Carswell conceded at oral argument that bifurcation of

discovery would radically complicate the case. Carswell suggested that a

special master could be appointed to police the Monell/official-capacity

depositions so that no party could cross the line into personal-capacity

questions before the district court adjudicated the immunity defense. But the

very fact that Carswell can foresee the need for a special master proves that

bifurcated discovery imposes unreasonable burdens on the defendants.

C.

Carswell also argues the scheduling order must pose no problem

because it is “obviously a form order” the district court uses frequently in

cases like this one. The district court likewise noted that defendants’ motion

to stay discovery presented “a frontal attack on [its] standard qualified

immunity (‘QI’) scheduling order.” And Carswell points us to similar

district court orders permitting Monell discovery against individual

defendants whose assertions of qualified immunity remained pending in

motions to dismiss. See, e.g., Saenz v. City of El Paso, No. 14-cv-244, 2015 WL

4590309, at *2 (W.D. Tex. Jan. 26, 2015) (declining to stay discovery despite

“acknowledg[ing] the force” of defendant’s arguments based on Iqbal ).

That the scheduling order here is “standard” in qualified immunity

cases tells us nothing about whether it correctly understands the governing

law. Today we clarify the governing law. And we trust that will harmonize

our circuit’s discovery practices with the Supreme Court’s instructions.

V.

Finally, Carswell argues that any error in the district court’s

scheduling order is harmless because she has clearly stated plausible claims

sufficient to defeat the individual defendants’ assertion of qualified immunity

in their motion to dismiss. But all agree the district court has not yet ruled on

that question. We decline to do so in the first instance. Cf. Cutter v.

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Wilkinson, 544 U.S. 709, 718 n.7 (2005) (“[W]e are a court of review, not of

first view.”); see also, e.g., Arnold v. Williams, 979 F.3d 262, 269 (5th Cir.

2020) (remanding for the district court to consider qualified immunity in the

first instance “[b]ecause as a general rule, we do not consider an issue not

passed upon below” (quotation omitted)).

* * *

Carswell’s motion to dismiss for lack of jurisdiction is DENIED. We

VACATE the district court’s scheduling order and REMAND for further

proceedings consistent with this opinion.

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