IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30213

Summary Calendar

ANNETTE FULTON,

Plaintiff–Appellee,

v.

STEVE CARAWAY, Chief of the Kenner Police Department; PAUL ZENO,

Jail Supervisor,

Defendants–Appellants.

ANNETTE FULTON,

Plaintiff–Appellee,

v.

STEVE CARAWAY, Chief; PAUL ZENO, Officer,

Defendants–Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-CV-3310

Before WIENER, PRADO, and OWEN, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

November 4, 2010

Lyle W. Cayce

Clerk

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No. 10-30213

PER CURIAM:

*

Steve Caraway, Chief of the Kenner Police Department, and Paul Zeno,

Jail Supervisor (together, Kenner Appellants) appeal from the United States

District Court for the Eastern District of Louisiana’s denial of their motion

requesting a Rule 7(a) reply from plaintiff–appellee Annette Fulton. We

conclude that we do not have jurisdiction over this appeal and therefore dismiss

it.

Fulton sued Caraway, Zeno, and an unidentified “Officer A,” along with

the City of Kenner and the Kenner Police Department, in both state and federal

court. She alleged violations of state and federal law. The case originally filed

in state court was removed to federal district court and was later consolidated

with the near-identical case originally filed in federal district court. The City of

Kenner, the Kenner Police Department, and Officer A, who has not yet been

identified, are not parties to this appeal. In her complaint, Fulton alleged

violations of the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments of

the United States Constitution and several provisions of the Louisiana

Constitution and Civil Code. Fulton sued pursuant to 42 U.S.C. § 1983 and

invoked the supplemental jurisdiction of the district court under 28 U.S.C.

§ 1367 to hear her state law claims.

The Kenner Appellants asserted the defense of qualified immunity to

Fulton’s claims. They then filed a motion for a Rule 7(a) reply and a

memorandum of law in support of that motion, pursuant to a procedure

developed by this court through which the district court may require a plaintiff

to submit detailed allegations that show the plaintiff will be able to overcome the

 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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No. 10-30213

defense of qualified immunity. Fulton opposed the motion. Deciding that a

1

reply was unnecessary, the district court denied the motion. This appeal

followed.

Because the denial of the motion for a Rule 7(a) reply is not a final

judgment, we must address whether this court has jurisdiction to hear the

appeal. We have jurisdiction to determine our jurisdiction. We requested that

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the parties brief the question of whether the “order denying the motion . . . is

appealable at this stage of the litigation pursuant to [FED. R. CIV. P.] 54(b), or

the collateral order doctrine, or whether there exists some other basis of

appellate jurisdiction.”

The Kenner Appellants argue that we have jurisdiction pursuant to 28

U.S.C. § 1291 and the Cohen collateral order doctrine. They argue that this

4

appeal falls into the “small class [of orders] which finally determine claims of

right separable from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the cause itself to require

that appellate consideration be deferred until the whole case is adjudicated.”

5

They contend that permitting an interlocutory appeal of the district court’s

denial of their motion for a Rule 7(a) reply vindicates the Harlow v. Fitzgerald

qualified immunity doctrine by ensuring that the issue of qualified immunity

6

will be decided at the earliest possible time. The district court’s denial of their

See Reyes v. Sazan, 168 F.3d 158, 159 (5th Cir. 1999); Schultea v. Wood, 47 F.3d 1427, 1

1433-34 (5th Cir. 1995) (en banc).

See 28 U.S.C. §§ 1291-1292. 2

Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir. 2010).

3

See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). 4

Id. 5

 457 U.S. 800, 807 (1982).

6

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motion, they continue, will subject them to discovery, a burden of litigation from

which qualified immunity should protect them. They conclude that the order

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“clearly and finally resolved an important issue separate from the merits of the

lawsuit.”

We disagree with the Kenner Appellants’ conclusion. The Supreme Court

has held that even under the required narrow reading of the appealable

collateral order doctrine, government officials are permitted to appeal decisions

in which the district court denies them qualified immunity. The rationale for

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permitting such appeals is that qualified immunity is a defense not only from

liability, but also from the burdens of litigation. When a district court order

9

denying qualified immunity “turns on an issue of law,” the order conclusively

determines that the defendant must bear the burdens of discovery, a decision

which is “conceptually distinct from the merits of the plaintiff’s claim” and

“would prove effectively unreviewable on appeal from a final judgment.”

10

We unquestionably would have jurisdiction over an appeal of a denial of

a motion to dismiss a § 1983 claim on a defense of qualified immunity. But this

11

case presents a different situation: the Kenner Appellants appeal from a nondispositive motion. The Supreme Court requires that a collateral order fulfill

three stringent conditions to be appealable: it must conclusively determine the

disputed question, resolve an important issue completely separate from the

merits of the action, and be effectively unreviewable on appeal from a final

See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). 7

Id. at 526-27. 8

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945-46 (2009) (citing Mitchell, 472 U.S. at 526). 9

Id. at 1946. 10

 Id. 11

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judgment. The denial of the motion for a Rule 7(a) Schultea reply does not

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fulfill the first requirement—the order did not conclusively determine the

disputed question. The district court’s order does not contain a ruling on

whether the facts alleged would overcome qualified immunity, only that they

were detailed enough to allow the court to rule on any subsequent dispositive

motion. We are unwilling to expand the collateral order doctrine this far.

* * *

We do not have jurisdiction over this appeal; it is therefore DISMISSED.

Martin v. Halliburton, 618 F.3d 476, 482 (5th Cir. 2010) (quoting Will v. Hallock, 546 12

U.S. 345, 349-50 (2006)).

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