United States Court of Appeals

for the Fifth Circuit

No. 21-10171

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.

United States Court of Appeals

Fifth Circuit

FILED

November 30, 2022

Lyle W. Cayce

Clerk

Case: 21-10171 Document: 00516562343 Page: 1 Date Filed: 11/30/2022
No. 21-10171

2

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 

Case: 21-10171 Document: 00516562343 Page: 2 Date Filed: 11/30/2022
No. 21-10171

3

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.

Case: 21-10171 Document: 00516562343 Page: 3 Date Filed: 11/30/2022
No. 21-10171

4

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)

Case: 21-10171 Document: 00516562343 Page: 4 Date Filed: 11/30/2022
No. 21-10171

5

(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 

Case: 21-10171 Document: 00516562343 Page: 5 Date Filed: 11/30/2022
No. 21-10171

6

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 

Case: 21-10171 Document: 00516562343 Page: 6 Date Filed: 11/30/2022
No. 21-10171

7

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 preCase: 21-10171 Document: 00516562343 Page: 7 Date Filed: 11/30/2022
No. 21-10171

8

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 

Case: 21-10171 Document: 00516562343 Page: 8 Date Filed: 11/30/2022
No. 21-10171

9

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 

Case: 21-10171 Document: 00516562343 Page: 9 Date Filed: 11/30/2022
No. 21-10171

10

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.

Case: 21-10171 Document: 00516562343 Page: 10 Date Filed: 11/30/2022
No. 21-10171

11

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. 

Case: 21-10171 Document: 00516562343 Page: 11 Date Filed: 11/30/2022
No. 21-10171

12

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.

Case: 21-10171 Document: 00516562343 Page: 12 Date Filed: 11/30/2022