# United States Court of Appeals

f or the Fifth Circuit

No. 21

- 10171

Gwendolyn Carswell, i ndividually and as d

ependent a dministrator of and on b ehalf of T he 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 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

. United States Court of Appeals Fifth Circuit 

### FILED June 17, 2022 Lyle W. Cayce Clerk Case: 21-10171 Document: 00516361295 Page: 1 Date Filed: 06/17/2022No. 21

- 10171

2 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. Jai l 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 fr om 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 alle g ed 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 no t stayed 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. Case: 21-10171 Document: 00516361295 Page: 2 Date Filed: 06/17/2022No. 21

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3 T he individual defendants complied with the order and filed answers and affi rmative defenses. But they also noticed an i mmediate 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’ assertion s of qualified immunity.”

T he district court denied defe ndants’ motion. In its October 8 order, the c ourt “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: [ T he 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

a ssertion 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

s he 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.

On October 13, in district court, Carswell filed an “advisory to the court concerning depositions” indicating that, on the Monell claim, she wished to Case: 21-10171 Document: 00516361295 Page: 3 Date Filed: 06/17/2022No. 21

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4 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 grante d the stay and subsequently heard oral argument.

II. “Jurisdiction is always first.” Arulna n thy v. Garland , 17 F.4th 586 , 592 (5th Cir. 202 1 ) (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 collat eral 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, 2 3 7 (2009) (quotation omitted) . It’s also “an immunity from suit.” I bi d

. (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) (per curiam) (a “ refusal to rule on a claim of immu nity ” deprives a defendant Case: 21-10171 Document: 00516361295 Page: 4 Date Filed: 06/17/2022No. 21

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5 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 “effecti vely

. . . denied [defendants] the benefit s 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 immunity question at that stage. It cannot defer that question until summary judgment . Nor can it permit discovery against the immunity

asserting defendant s 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’s true that, a long time ago, we authorized discovery in violation of these rules. For example, we once authorized a “narrow exception to the general rule that qualified immu nity should be decided as early in the Case: 21-10171 Document: 00516361295 Page: 5 Date Filed: 06/17/2022No. 21

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6 litigation as possible

. ” Randle v. Lockwood , 666 F. App’x 333, 336 n.6 (5th Cir. 2016) (per curiam) ; see also Lion Boulos v. Wilson , 834 F.2d 504, 508

– 09 (5th Cir. 1987) (first articulating this exception)

. We describ ed that “narrow exception” as “a careful procedure , ” which permitted 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). W e required the district court to first find that the plaintiff has ple a d ed “ facts which, if true, would overcome the defense of qualified immunity.” Ibid. (quotation omitted). If it still found itself “unable to rule on the immunity defense without further clarification of the facts,” ibid. (quotation omitted) , then we allowed the district court to order discovery “narrowly tailored to uncover only those facts needed to rule on the immunity claim , ” Wic ks , 41 F.3d at 994 (quoting Lion Boulos , 834 F.2d
at 507

– 08)

. Call it “careful,” or call it “narrow”; either way, today we call Lion Boulos and its progeny overruled

. The Supreme Court has now made clear that a plaintiff asserting constitutional claims ag ainst an officer must survive the motion to dismiss (and the qualified immunity defense) without any discovery. Our prior decisions to the contrary are overruled. See In re Bonvillian Marine Serv., Inc. , 19 F.4th 787, 792 (5th Cir. 2021) (We must declare circuit precedent overruled where “ a former panel ’ s decision has fallen unequivocally out of step with some intervening change in the law .”). Consider, for example, Ashcroft v. Iqbal , 556 U.S. 662 (2009). The re the district court gave the plaintif f discovery before ruling on the officials’ motion to dismiss for qualified immunity. See i d. at 670. The plaintiff tried to defend tha t 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 Case: 21-10171 Document: 00516361295 Page: 6 Date Filed: 06/17/2022No. 21

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7 Supreme Court had none of it. Instead , it reaffirmed its prior holding “that the question pres ented 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 tha t 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 6 85. I t concluded the respondent was “not entitled to discovery , cabined or otherwise.” I d. at 686. Thus, Iqbal squarely repudiated our “careful procedure” for 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. I

bi d. Th e 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). Although our court previously carved out a “nar row exception” to this rule, Randle , 666 F. App’x at 336 n.6, we now make clear the rule admits of no exceptions

. It does not matter that, after Twombly and Iqbal , we sometimes recited our “careful procedure” for premature discovery. See, e.g. , Hinojosa v. Livings t on , 807 F.3d 657, 670

– 74 (5th Cir. 2015) (approving, as “compli[ant] with our precedent,” order deferring ruling on motion to dismiss asserting qualified immunity and permitting “appropriately tailored” discovery); Zapata , 750 F.3d at 485 (vacatin g discovery order because it “did not follow the careful procedure set forth in Backe , Wicks , Helton , and Lion Boulos ”); Backe , 691 F.3d at 649 (similar)

. None of those cases considered whether and Case: 21-10171 Document: 00516361295 Page: 7 Date Filed: 06/17/2022No. 21

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8 to what extent our “careful procedure” could be squared wi th T w ombly and Iqbal , and therefore, none of those cases bind us under the rule of orderliness. See Gahagan v. U

.S. Citizenship & Immigr. Servs. , 911 F.3d 298, 302 (5th Cir. 2018) (“An opinion restating a prior panel’s ruling does not sub silentio hold that the prior ruling survived an uncited Supreme Court decision.”) . Today, we consider that previously unresolved question and hold that Lion Boul os and its progeny have been overruled.

IV.

Carswell offer s t hree 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, admit ted 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 allegation s state a claim of violation of clearly 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 “th e driving force” behind qualified immunity i s “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 stag e in litigation.” Pearson , 555 U.S. at 231

– 32 (emphasis added)

. Case: 21-10171 Document: 00516361295 Page: 8 Date Filed: 06/17/2022No. 21

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9 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 defend s the scheduling order because it stayed discovery as to qualified im munity

. 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.

I qbal 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 con tinue for other defendants. It is quite likely that, when discovery as 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 wa y 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 i ntrusive discovery” against official defendants before a ruling Case: 21-10171 Document: 00516361295 Page: 9 Date Filed: 06/17/2022No. 21

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10 that plaintiff had met his burden to overcome the qualified immunity defense at the pleading stage. Id. at 686.

Carswell respond s that “ Monell discovery presents no undue burden to the Individ ual 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 difference s 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

t he 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 t he 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. 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 cou rt 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. Case: 21-10171 Document: 00516361295 Page: 10 Date Filed: 06/17/2022No. 21

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11 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 [i ts] 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 Iqba l )

. This merely confirms the dissonance between our pre

- Iqbal cases and Iqbal itself. 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 c ircuit’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 distri ct court has not yet ruled on that question

. We decline to do so in the first instance. Cf. Cutter v. 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) ). Case: 21-10171 Document: 00516361295 Page: 11 Date Filed: 06/17/2022No. 21

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12 * * *

Carswell ’s motion to dismiss for lack of jurisdicti on is DENIED . W e VACATE the district court’s scheduling order and REMAND for further proceedings consistent with this opinion. Case: 21-10171 Document: 00516361295 Page: 12 Date Filed: 06/17/2022