IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40579

EDNA WEBB, Individually and as heir at law; KEVIN WEBB, Individually 

and as the representative of the Estate of Robert Allen Webb; CASEY 

AKINS, Individually and as heir at law; ESTATE OF ROBERT ALLEN 

WEBB; CHRISTIAN CARSON, 

 Plaintiffs - Appellees

v.

BRAD LIVINGSTON; WILLIAM STEPHENS; WARDEN RICK THALER, 

 Defendants - Appellants

---------------------------------------------------

 Cons. w/No. 14-40586

EDNA WEBB, Individually and as heir at law; KEVIN WEBB, Individually 

and as the representative of the Estate of Robert Allen Webb; CASEY 

AKINS, Individually and as heir at law; ESTATE OF ROBERT ALLEN 

WEBB; CHRISTIAN CARSON, 

 Plaintiffs 

v.

BRAD LIVINGSTON; WILLIAM STEPHENS; WARDEN RICK THALER, 

 Defendants 

------------------------------------------------------

GWEN TOGONIDZE, as Next Friend of J.T., a Minor; J. T., a Minor, 

Plaintiffs - Appellees 

v. 

United States Court of Appeals

Fifth Circuit

FILED

July 17, 2015

Lyle W. Cayce

Clerk

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BRAD LIVINGSTON; WILLIAM STEPHENS; WARDEN RICK THALER, 

Defendants - Appellants

---------------------------------------------------

Cons. w/ No. 14-40756

ASHLEY ADAMS, Individually and as the representative of the Estate of 

Rodney Gerald Adams; WANDA ADAMS, Individually; MARY LOU JAMES, 

Individually; CARLETTE HUNTER JAMES, Individually and as the 

representative of the Estate of Kenneth Wayne James; KRYSTAL JAMES, 

Individually and as heir-in-law to the Estate of Kenneth Wayne James; 

KRISTY JAMES, Individually and as heir-in-law to the Estate of Kenneth 

Wayne James; KENDRICK JAMES, Individually and as heir-in-law to the 

Estate of Kenneth Wayne James; ARLETTE JAMES, Individually and as 

heir-in-law to the Estate of Kenneth Wayne James; JONATHAN JAMES, 

Individually and as heir-in-law to the Estate of Kenneth Wayne James; 

KENNETH EVANS, Individually and as heir-in-law to the Estate of Kenneth 

Wayne James; CADE HUDSON, Individually and as the representative of 

the Estate of Douglas Hudson; ESTATE OF RODNEY GERALD ADAMS; 

ESTATE OF KENNETH WAYNE JAMES; ESTATE OF DOUGLAS 

HUDSON, 

Plaintiffs - Appellees 

v. 

RICK THALER; WILLIAM STEPHENS; BRAD LIVINGSTON, Individually 

and in his official capacity, 

Defendants - Appellants

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 6:13-CV-711

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Before STEWART, Chief Judge, HAYNES, Circuit Judge, and BROWN, 

District Judge.*

PER CURIAM:**

This consolidated appeal1 arises from the heat-related deaths of five 

prisoners who died while housed in facilities operated by the Texas 

Department of Criminal Justice (TDCJ). Appellants Brad Livingston, William 

Stephens, and Rick Thaler, three top TDCJ executives, challenge the district 

court’s decision to defer and carry their motions to dismiss on the basis of 

qualified immunity. The district court, agreeing in large part with the 

magistrate judge’s report and recommendation, concluded that significant, 

unanswered questions made it unable to rule on Appellants’ immunity defense. 

Therefore, the district court postponed ruling on Appellants’ motions to dismiss 

until the parties completed court-ordered discovery limited to the issue of 

qualified immunity. Concluding that we lack jurisdiction over this appeal, we 

DISMISS.

I.

During the summers of 2011 and 2012, Robert Allen Webb, Alexander 

Togonidze, Rodney Adams, Kenneth Wayne James, and Douglas Hudson 

(collectively, decedents), five prisoners incarcerated in several TDCJ prison 

facilities, died from heat-related injuries. Following their deaths, the 

decedents’ family members (Appellees) brought three separate lawsuits 

 

* District Judge of the Eastern District of Louisiana, sitting by designation.

** 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.

1 On Appellants’ motion, this court consolidated Edna Webb, et al. v. Brad Livingston, 

et al. No. 14-40579; Gwen Togonidze, et al. v. Brad Livingston, et al. No. 14-40586; and Ashley 

Adams, et al. v. Brad Livingston, et al., No. 14-40756 for appeal, with Webb as the lead case.

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asserting causes of action against several parties, including Brad Livingston, 

Rick Thaler, and William Stephens (Appellants) in their individual capacities. 

Relevant to the present appeal, Appellees claimed, under 42 U.S.C. § 1983, 

that Appellants acted with deliberate indifference to the decedents’ health and 

safety needs in violation of the Eighth and Fourteenth Amendments.2

The complaints alleged that during the summer months, the prison 

facilities where the decedents were housed experienced outside temperatures 

above 100 degrees Fahrenheit for weeks at a time. These prisons did not have 

air conditioning in the inmate living areas, which routinely caused the indoor 

apparent, or “feels like,” temperature to exceed 100 degrees. At such 

temperatures, heatstroke becomes “imminent” even for those in good health. 

However, the decedents were not in good health. Each decedent had a heatsensitive disability that made them particularly vulnerable to heatstroke at 

high temperatures. Specifically, they suffered from hypertension, diabetes, 

depression or a combination thereof, which required them to take medications

that interfered with their bodies’ ability to regulate temperature. Appellees 

claimed that Appellants were aware of these alleged facts but failed to 

promulgate adequate policies to address the extreme heat endured by 

prisoners in the prison living areas. Appellees contended that Appellants’

actions and inactions amounted to deliberate indifference, which proximately 

caused decedents’ deaths. 

Appellants filed motions to dismiss pursuant to Federal Rule of Civil 

Procedure 12(b)(6) in each of the three lawsuits, asserting qualified immunity. 

 

2 Relatives of Douglas Hudson and Kenneth James also asserted a denial of medical 

care claim under the Eighth and Fourteenth Amendments, and all Appellees asserted claims 

under the Americans with Disabilities Act, Rehabilitation Act, and Texas state law for 

negligence. Those claims are not part of this appeal. 

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Addressing the motion filed in the Webb case, the magistrate judge concluded 

that discovery limited to Appellants’ entitlement to qualified immunity was 

necessary to rule on the pending motion to dismiss. Accordingly, the 

magistrate judge recommended that Appellants’ motion to dismiss be denied 

and that limited discovery be permitted on the issue of qualified immunity. 

On de novo review, the district court agreed in substance with the 

magistrate’s recommendation but disagreed in part with the recommended 

disposition. Instead of denying Appellants’ motion to dismiss, the district 

court, relying on Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012), deferred and 

carried the motion to be revisited after the completion of discovery limited to 

Appellants’ immunity defense. Pursuant to Backe, the district court reviewed 

the Webb complaint and concluded that, if true, the complaint’s allegations 

were sufficient to overcome the Appellants’ immunity defense. The district 

court further found that there were significant unanswered questions, which 

made it unable to rule on the immunity defense without clarification of 

pertinent facts and therefore ordered limited discovery.3 Appellants timely 

appealed.

II.

Though neither party addresses the issue of this court’s jurisdiction to 

review the district court’s order, “[w]e must, as always, determine our own 

jurisdiction before proceeding further.” Backe, 691 F.3d at 647. Generally, this 

court lacks jurisdiction to review an order compelling limited discovery under 

 

3 Shortly after it issued its order in Webb, the district court, on the parties’ joint 

recommendation, consolidated Webb, Togonidze, and Adams, for the purpose of discovery and 

other pre-trial matters. Subsequently, the district court issued its order in Webb, deferring

and carrying Appellants’ motions to dismiss and permitting discovery limited to qualified 

immunity, in the other two cases. All three complaints, signed by the same attorney, contain 

substantially similar factual allegations. 

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the final judgment rule. Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 

1987) (citing 28 U.S.C. § 1291). “However, we have repeatedly held that a 

district court’s order that declines or refuses to rule on a motion to dismiss 

based on a government officer’s defense of qualified immunity is an 

immediately appealable order.” Zapata v. Melson, 750 F.3d 481, 484 (5th Cir. 

2014) (citations omitted). The court has reasoned that such an order is 

effectively a denial of qualified immunity, a disposition that is immediately 

appealable as a collateral final order. See Helton v. Clements, 787 F.2d 1016, 

1017 (5th Cir. 1986) (per curiam).

Qualified immunity protects government officials “from liability for civil 

damages insofar as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have known.”4

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This immunity extends beyond 

a defense to liability to protect government officials from the burdens of 

litigation, including “pretrial discovery, which is costly, time-consuming, and 

intrusive.” Backe, 691 F.3d at 648 (citation omitted). Nevertheless, “qualified 

immunity does not shield government officials from all discovery but only from 

discovery which is either avoidable or overly broad.” Lion Boulos, 834 F.2d at 

507. Accordingly, this court has established a procedure by which a district 

court may defer ruling on the issue of qualified immunity if further factual 

 

4 To determine whether an official is entitled to qualified immunity, the court must 

conduct a two-step inquiry. First, the court must decide “whether the facts that a plaintiff 

has alleged . . . make out a violation of a consitutitonal right.” Pearson v. Callahan, 555 U.S. 

223, 232 (2009) (citation omitted). Second, if the plaintiff has alleged a constitutional 

violation, the court must determine whether the right at issue was clearly established at the 

time of the alleged misconduct. Id. 

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development is required to determine the availability of that defense. See 

Zapata, 750 F.3d at 485; Backe, 691 F.3d at 648.

As a threshold matter, the district court must find “that the plaintiff’s 

pleadings assert facts which, if true, would overcome the defense of qualified 

immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995). 

“Thus, a plaintiff seeking to overcome qualified immunity must plead specific 

facts that both allow the court to draw the reasonable inference that the 

defendant is liable for the harm he has alleged and that defeat a qualified 

immunity defense with equal specificity.” Backe, 691 F.3d at 648. If the 

complaint alleges facts sufficient to overcome the defense of qualified 

immunity, and the district court is “unable to rule on the immunity defense 

without further clarification of the facts,” then it may allow discovery 

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

claim.” Id. (quoting Lion Boulos, 834 F.2d at 507–08) (internal quotation 

marks omitted). 

When a district court complies with this procedure, this court lacks 

jurisdiction to review the interlocutory order. Id. However, the court does 

have jurisdiction if the district court: (1) fails to find that the complaint 

overcomes the defendant’s qualified immunity defense; (2) refuses to rule on 

the qualified immunity defense; or (3) issues a discovery order that is not 

narrowly tailored to uncover facts relevant only to the issue of qualified 

immunity. See id. (citations omitted). 

Our jurisdiction over this appeal hinges on the first and third inquiries, 

that is, whether the district court properly found that the complaint overcame 

Appellants’ qualified immunity defense and whether the district court’s 

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discovery order was narrowly tailored to uncover facts relevant to the defense.5 

We review a district court’s decision to defer ruling on a motion to dismiss and 

its discovery order for abuse of discretion. Id. at 649.

A.

We must first determine whether the district court correctly concluded 

that Appellees’ complaint asserted facts, which, if true, would overcome 

Appellants’ qualified immunity defense. “To overcome the immunity defense, 

the complaint must allege facts that, if proven, would demonstrate that 

[Appellants] violated clearly established statutory or constitutional rights.” 

Wicks, 41 F.3d at 995. Such facts must be particular. See id. “A pleading that 

offers labels and conclusions or formulaic recitation of the elements of a cause 

of action will not do.” Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 

643 (5th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) 

(internal quotation marks omitted).

Appellees claim that Appellants’ actions and inactions in the face of 

extremely hot temperatures violated the decedents’ Eighth Amendment right 

to be housed in humane conditions of confinement. “The Constitution does not 

mandate comfortable prisons . . . but neither does it permit inhumane ones.” 

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and 

 

5 The second scenario, in which the district court refuses to rule on the qualified 

immunity defense, is governed by Helton, 787 F.2d at 1017. There, this court held that a 

district court’s order declining or refusing to rule on a motion to dismiss based on the defense 

of qualified immunity is an immediately appealable order. Id. Helton, however, announces 

a narrow holding that this court has refused to extend. See Meza v. Livingston, 537 F.3d 364, 

367 (5th Cir. 2008). Helton’s narrow holding does not reach the facts of this case as there, 

the district court refused to rule on the defendant’s immunity defense until trial, thus 

depriving defendant of his right not to stand trial. 787 F.2d at 1017. Here, by contrast, the 

district court deferred ruling on Appellants’ immunity defense until the court could rule on 

the motion to dismiss or motion for summary judgment after the completion of limited 

discovery. 

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citation omitted). Indeed, the Eighth Amendment requires that prison officials 

“provide humane conditions of confinement; they must ensure that inmates 

receive adequate food, clothing, shelter, and medical care, and must take 

reasonable measure to ensure the safety of the inmates.” Gates v. Cook, 376 

F.3d 323, 332 (5th Cir. 2004) (citing Farmer, 511 U.S. at 832).

A plaintiff must meet two requirements to establish an Eighth 

Amendment violation. First, “the deprivation alleged must be, objectively, 

sufficiently serious.” Farmer, 511 U.S. at 834 (internal quotation marks and 

citations omitted). Conditions of confinement that deprive an inmate of “the 

minimal civilized measure of life’s necessities . . . are sufficiently grave to form 

the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 

298 (1991) (internal quotation marks and citation omitted). Second, the 

plaintiff must show that the prison official acted with deliberate indifference 

to that known risk. Farmer, 511 U.S. at 834. A prison official acts with 

deliberate indifference if “he knows that inmates face a substantial risk of 

serious harm and disregards that risk by failing to take reasonable measures 

to abate it.” Id. at 847. “Whether a prison official had the requisite knowledge 

of a substantial risk is a question of fact subject to demonstration in the usual 

ways, including inference from circumstantial evidence, and a factfinder may 

conclude that a prison official knew of a substantial risk from the very fact that 

the risk was obvious.” Gates, 376 F.3d at 333 (citation omitted).

Appellees’ allegations, if true, satisfy both requirements. First, 

Appellees’ allegations demonstrate that the decedents’ exposure to extreme 

heat posed an objective and substantial risk of serious harm. It is well 

established in this Circuit that exposure to extremely hot temperatures 

presents a substantial risk of serious harm to inmate safety. See Ball v. 

LeBlanc, ---F.3d---, 2015 WL 4114473, at *4 (5th Cir. July 8, 2015) (affirming 

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the district court’s finding that evidence of inmates’ heightened vulnerability 

to high temperatures coupled with high summer temperatures in inmate

housing posed a substantial risk of serious harm); Gates, 376 F.3d at 340

(determining that exposure to consistently hot temperatures constituted a 

substantial risk of serious harm to inmates); Smith v. Sullivan, 553 F.2d 373, 

381 (5th Cir. 1977) (stating that “[i]f the proof shows the occurrence of extremes 

of temperature that are likely to be injurious to inmates’ health[,] relief should 

be granted”).

Second, Appellees’ complaint sufficiently alleges that Appellants knew 

of, but were deliberately indifferent to, this known risk of harm. The complaint 

alleges that Appellants knew: the prison locations where the decedents were 

housed were experiencing a severe heatwave with temperatures in the 

hundreds; the prisons’ indoor temperatures routinely exceeded 100 degrees; 

the inmate living areas were not air conditioned or otherwise cooled to bring 

down these extreme temperatures; and such extreme temperatures made 

heatstroke imminent, especially for those with heat-related vulnerabilities like 

decedents. The complaint also alleges that Appellants discussed the risk posed 

by inmate exposure to extreme heat, routinely reviewed documents reporting 

heat-related injuries suffered by prisoners and staff, sent out an informal email 

warning of the risk, and provided (inadequate) training to correctional officers 

highlighting the warning signs of heat-related illness. Despite this knowledge, 

the complaint alleges that Appellants inadequately responded to the risk or 

took no action to protect heat-sensitive inmates, like the decedents, from the 

extreme heat. These allegations, if true, can demonstrate that Appellants 

acted with deliberate indifference to a known risk. See Ball, 2015 WL 4114473

at *6 (concluding that officials’ failure to act despite their awareness of 

extremely high indoor temperatures, review of records listing those prisoners

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that were susceptible to heat, and articulated concern about the high 

temperatures was sufficient to show deliberate indifference). Moreover, the 

open and obvious nature of the alleged conditions further supports the 

reasonable inference that Appellants were deliberately indifferent.6 See Gates, 

376 F.3d at 340 (affirming trial court’s finding of a prison system’s deliberate 

indifference based on the open and obvious nature of extreme heat in prison 

facilities). 

Having determined that Appellees’ complaint sufficiently alleges facts, 

taken as true, to state a violation of decedents’ Eighth Amendment right, we 

must next determine whether that right was clearly established. We conclude 

that it was. To be clearly established, “[t]he contours of the right must be 

sufficiently clear that a reasonable official would understand that what he is 

doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In 

other words, the court must determine “whether the state of the law in [2011] 

gave [Appellants] fair warning that their alleged treatment of [the decedents] 

was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). A prisoner’s 

right to be free from extreme temperatures was clearly established in 2011.7 

 

6 Contrary to Appellants’ suggestion, Appellees’ allegations that Appellants failed to 

promulgate adequate policies despite knowing the effect of extreme heat on heat-sensitive 

prisoners like the decedents, if true, could support the imposition of supervisory liability. See 

Sanders v. Foti, 281 F.3d 1279 (5th Cir. 2001) (per curiam) (unpublished) (holding that 

allegations that a state prison system’s executive failed to establish a policy to prevent 

constitutional violations, which led to plaintiff’s harm, were sufficient to establish 

supervisory liability); Stitt v. Klevenhagen, 50 F.3d 1032 (5th Cir. 1995) (per curiam) 

(unpublished) (concluding that supervisory liability could be established where complaint 

alleged that the supervisor was aware of a constitutional violation, failed to correct it, and 

the supervisor’s failure caused the plaintiff’s injury).

7 Appellants acknowledged at oral argument that decedents had a clearly established 

right to be free from extreme temperatures. Nevertheless, they maintained that this is too 

broad a pronouncement of the governing law to have alerted them that their alleged 

mistreatment of the decedents violated their constitutional rights. Relying on Gates v. Cook, 

where this court upheld an injunction requiring Mississippi prison officials to provide fans, 

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See Wilson, 501 U.S. at 304 (proposing that “a low cell temperature at night 

combined with a failure to issue blankets” can violate the Eighth Amendment); 

see also Gates, 376 F.3d at 339–40; Sullivan, 553 F.2d at 381. 

By containing facts, which, if true, demonstrate that Appellants violated 

the decedents’ clearly established Eighth Amendment right to be free from 

extreme heat, Appellees’ allegations are sufficient to overcome Appellants’ 

qualified immunity defense. See Wicks, 41 F.3d at 995. Because the district 

court properly conducted this threshold inquiry, it was within its discretion to 

 

additional access to ice water, and daily showers, 376 F.3d at 339–40, Appellants contended 

that the clearly established law of this Circuit held that subjecting inmates to extreme 

temperatures without remedial measures is unconstitutional. We disagree. Appellants have 

pointed to no case law that so narrowly defines the boundaries of the clearly established law 

within this context. Indeed, Valigura v. Mendoza, a case on which Appellants also relied,

broadly defined the contours of the inmate’s right, concluding that as of 2004, “it was clearly 

established that [the inmate] had a right to be free from cruel and unusual punishment,” 

which included the right not to be subject to extremely hot temperatures. 265 F. App’x 232, 

236 (5th Cir. 2008) (per curiam). We further observed that “the contours of these rights were 

sufficiently clear at the time of the alleged deprivation.” Id. 

Moreover, even assuming arguendo that Appellants have offered a correct statement 

of the clearly established law, the mere presence of remedial measures would not end the 

inquiry, as such measures must be adequate. Indeed, we have affirmed determinations that 

prison officials violated the Eighth Amendment despite evidence that the officials

implemented the remedial measures approved in Gates, where such measures proved 

inadequate to protect inmates from the extreme heat. See Ball v. LeBlanc, ---F.3d---, 2015 

WL 4114473, at *4 (5th Cir. July 8, 2015); Blackmon v. Garza, 484 F. App’x 866, 871–72 (5th 

Cir. 2012) (per curiam). Appellees allege that Appellants’ remedial measures were 

inadequate to protect decedents from the extreme heat. These allegations, which we must 

accept as true, can overcome Appellants’ immunity defense.

Finally, our conclusion is not out of step with the Supreme Court’s recent decision in 

Taylor v. Barkes, 135 S. Ct. 2042 (2015). There, the Court faulted the Third Circuit Court of 

Appeals for holding that an inmate had a clearly established Eighth Amendment right to the 

proper implementation of adequate suicide prevention protocols, when there was no decision 

of the Supreme Court that “even discusses suicide screening or prevention protocols,” and the 

Third Circuit’s own case law did not clearly recognize that such a right existed. Id. at 2044. 

By contrast, Supreme Court case law strongly suggests, see Wilson, 501 U.S. at 304, and our 

precedent establishes that an inmate has a constitutional right to be free from extreme 

temperatures. See Gates, 376 F.3d at 339–40; Sullivan, 553 F.2d at 381. 

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determine whether limited discovery was necessary to rule on Appellants’ 

entitlement to the immunity defense. See id.

B.

We next address whether the district court’s discovery order was 

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

claim.” Backe, 691 F.3d at 648 (internal quotation marks and citation omitted). 

After concluding that the complaint pleads facts sufficient to overcome an 

asserted qualified immunity defense, a district court may permit limited 

discovery relevant to the defense. See id.; see also Schultea v. Wood, 47 F.3d 

1427, 1434 (5th Cir. 1995) (en banc) (allowing a district court to order limited 

discovery if “it finds that plaintiff has supported his claim with sufficient 

precision and factual specificity to raise genuine issues as to the illegality of 

defendant’s conduct at the time of the alleged acts”). 

As previously mentioned, an order compelling limited discovery is not 

generally appealable under the final judgment rule. Lion Boulos, 834 F.2d at 

506. However, “in qualified immunity cases such as this one, immediate 

appeal is available for discovery orders which are either avoidable or overly 

broad.” Gaines v. Davis, 928 F.2d 705, 707 (5th Cir. 1991). A district court’s 

discovery order is neither avoidable nor overly broad, and therefore not 

immediately appealable, when: (1) the defendant’s entitlement to immunity 

turns at least partially on a factual question; (2) the district court is unable to 

rule on the immunity defense without clarification of these facts; and (3) the 

discovery order is narrowly tailored to uncover only the facts necessary to rule 

on the immunity defense. Lion Boulos, 834 F.2d at 507–508.

Applying the first factor, the district court properly concluded that 

Appellants’ entitlement to qualified immunity turned at least partially on an 

issue of fact. To determine whether Appellants are entitled to qualified 

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immunity, the district court must evaluate whether Appellants acted with 

deliberate indifference by subjectively disregarding a known risk, Farmer, 511 

U.S. at 834, and whether the Appellants actions were objectively reasonable

despite the alleged deliberate indifference. See Porter v. Epps, 659 F.3d 440, 

446 (5th Cir. 2011). Appellants’ subjective knowledge is a question of fact, 

Gates, 376 F.3d at 333, which this court has recognized is “peculiarly within 

the knowledge” and possession of Appellants. See Morgan v. Hubert, 335 F. 

App’x 466, 472 (5th Cir. 2009) (quoting Schultea, 47 F.3d at 1432). Therefore, 

the district court did not err in concluding that Appellants’ immunity defense, 

which required an inquiry into Appellants’ alleged deliberate indifference, 

turned in part on an issue of fact.

Moving to the second factor, the district court was within its discretion 

in concluding that it was unable to rule on the immunity defense without 

further clarification of the facts. To rule on the immunity defense, the district 

court must assess “whether the official’s conduct would have been objectively 

reasonable at the time of the incident.” Wilkerson v. Goodwin, 774 F.3d 845, 

851 (5th Cir. 2014). This determination is complicated when, as here, the 

deliberate indifference standard must be reconciled with the second prong’s 

objective reasonableness standard. As this court has explained, “[o]bviously, 

the analysis for objective reasonableness is different from that for deliberate 

indifference (the subjective test for addressing the merits). Otherwise, a 

successful claim of qualified immunity in this context would require 

defendants to demonstrate that they prevail on the merits, thus rendering 

qualified immunity an empty doctrine.” Hare v. City of Corinth, Miss., 135 

F.3d 320, 328 (5th Cir. 1998). “Accordingly, . . . the subjective deliberate 

indifference standard serves only to demonstrate the clearly established law in 

effect at the time of the incident.” Id. In light of these complexities, we have 

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observed that “[a]dditional facts . . . are particularly important when 

evaluating the second prong of the qualified immunity test.” Morgan, 335 F. 

App’x at 473. Therefore, the district court did not err in concluding that further 

factual clarification was necessary to resolve the immunity issue. See id. 

Finally, under the third factor, the limited discovery is narrowly tailored. 

The ordered discovery seeks to reveal what Appellants knew, when they knew 

it, and what actions (or inactions) they took in light of this knowledge. 

Moreover, the district court was careful to prevent discovery that pertained to 

the merits of Appellees’ underlying claims, and excluded discovery relevant to 

other heat-related litigation. Consequently, the district court’s discovery order 

is narrowly tailored to uncover only the facts necessary to rule on the immunity 

defense. 

Because the immunity defense turns on an issue of fact, the district court 

concluded that it could not determine Appellants’ entitlement to the defense 

without discovery, and discovery was limited to the issue of qualified 

immunity, the district court did not abuse its discretion. Backe, 691 F.3d at 

649. Accordingly, this court lacks jurisdiction to review the district court’s 

discovery order. Lions Boulos, 834 F.2d at 508.

III.

In sum, the district court’s proper adherence to Circuit procedure in 

deferring its ruling on Appellants’ motions to dismiss and ordering discovery 

narrowly tailored to the issue of qualified immunity deprives this court of 

jurisdiction over this appeal. Accordingly, we DISMISS for lack of 

jurisdiction.8

 

8 Both Appellants and Appellees filed an opposed motion for judicial notice. In light 

of the disposition of this appeal, all pending motions are DENIED. 

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