Carswell v. Camp ( 2022 )

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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