IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30126

ANDREA ARMSTRONG, Executrix of the Estate of Glen Ford, 

 Plaintiff–Appellee

v.

DON ASHLEY; GARY ALDERMAN; GARY PITTMAN; EVERETT T. 

RUSHING; BILLY LOCKWOOD, wrongly identified as Estate of Billy 

Lockwood; FRANK DATCHER; GLYNN MITCHELL; RODNEY PRICE,

 Defendants–Appellants

Appeal from the United States District Court 

for the Western District of Louisiana

Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, Circuit Judge:

Glenn Ford was wrongly convicted of murder and spent 30 years in 

solitary confinement on death row before being fully exonerated, with all 

charges dropped. Ford sued the Defendants-Appellants1 (as well as other 

defendants not included in this appeal), all of whom were law enforcement 

officials at the time of Ford’s wrongful conviction, alleging suppression of

 

1 Don Ashley, Gary Alderman, Gary Pittman, Everett T. Rushing, Billy Lockwood,

Frank Datcher, Glynn Mitchell, and Rodney Price.

United States Court of Appeals

Fifth Circuit

FILED

March 11, 2019

Lyle W. Cayce

Clerk

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No. 18-30126

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evidence, fabrication of witness statements, withholding of exculpatory 

evidence, and other violations.

Ford filed suit in March 2015. The operative First Amended Complaint 

was filed on September 8, 2015. Appellants answered the complaint on 

December 3, 2015, while other defendants in the initial lawsuit chose to 

instead move to dismiss under Federal Rule of Civil Procedure 12(b). 

Approximately three months later, on March 16, 2016, the Appellants filed a 

Rule 12(b)(6) motion to dismiss the case for failure to state a claim. 

Alternatively, they moved for the Appellee to add details to the allegations 

pursuant to Federal Rule of Civil Procedure 7(a).

The district court denied the Rule 12(b)(6) motion for being untimely on 

December 28, 2017.2 The court also denied the alternative relief under Rule 

7(a). The Appellants appealed the dismissal of the Rule 12(b)(6) motion on 

January 23, 2018. 

I. 

The first, and determinative, issue is that of appellate jurisdiction. The

case comes before this court on interlocutory appeal. In deference to the district 

court and to district judges’ responsibility to manage trials, interlocutory 

appeals are only allowed in limited circumstances because they disrupt the 

progress of a trial. Johnson v. Jones, 515 U.S. 304, 309 (1995). Therefore, 

“interlocutory appeals–appeals before the end of district court proceedings–are 

the exception, not the rule.” Id.

“[A] decision . . . is appealable if it falls within ‘that small class 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 

 

2 In contrast, the district court ruled on the merits for the Rule 12(b)(6) motions filed 

in a timely manner by the other defendants.

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of the cause itself to require that appellate consideration be deferred until the 

whole case is adjudicated.’” Mitchell v. Forsyth, 472 U.S. 511, 524–25 (1985) 

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

Accordingly, Mitchell held that “a district court’s denial of a claim of qualified 

immunity, to the extent that it turns on an issue of law, is an appealable ‘final 

decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence 

of a final judgment.” Id. at 530 (emphasis added). For a decision to be 

considered final, and therefore appealable, it must fulfill three conditions laid 

out in Mitchell. Id. at 527. First, it must be “effectively unreviewable on appeal 

from a final judgment.” Id. Second, it must “conclusively determine the 

disputed question.” Id. (citation omitted). Finally, the question at issue must 

be a “clai[m] of right separable from, and collateral to, rights asserted in the 

action.” Id. (alteration in original) (citation omitted). The appellate court does 

not have jurisdiction to evaluate factual disputes. Winfrey v. Pikett, 872 F.3d 

640, 643–44 (5th Cir. 2017).

A decision on qualified immunity can be an appealable final decision,

“but only to the extent that the appeal concerns the purely legal question 

whether the defendants are entitled to qualified immunity on the facts[.]” 

Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). Typically, this 

determination is a decision on “whether the federal right allegedly infringed 

was clearly established.” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (internal 

quotation omitted). If the district court declined to rule on qualified immunity 

when it was so obligated, that may also be considered an appealable final 

decision. See Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986). However, 

“where the district court refuses to rule on a claim of immunity because it has 

not been timely presented to the court, Mitchell does not provide for appellate 

jurisdiction.” Hernandez v. Brazoria Cty., No. 93-2525, 1994 WL 171620, at *2 

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(5th Cir. Apr. 26, 1994) (per curiam) (unpublished but precedential); see also 

Edwards v. Cass Cty., Tex., 919 F.2d 273, 275 (5th Cir. 1990).

II. 

The Appellants filed a Rule 12(b)(6) motion to dismiss that included an 

assertion of qualified immunity. The Appellants argue that in denying the Rule 

12(b)(6) motion, the district court made an appealable final legal decision on 

qualified immunity. The Appellants base this argument on a statement made 

by the district court regarding a possible alternative argument that the 

defendants did not raise in their motion – that the Rule 12(b)(6) motion should 

instead be considered a Rule 12(c) motion.3 The district court, in declining to 

consider the motion under Rule 12(c), stated that “there are material facts in 

dispute and at this stage of the litigation, the Law Enforcement Defendants 

are not entitled to a judgment as a matter of law.” Based on this statement, 

the Appellants aver that the district court essentially made a final legal 

determination that the Appellants were not entitled to qualified immunity. 

This final legal determination must be appealable, Appellants maintain, 

because the purpose of qualified immunity is to protect the officers from trial, 

not only from liability. Mitchell, 472 U.S. 511, 526-27.

However, the district court specifically stated that it was making the 

decision on procedural grounds, rather than legal grounds: “Accordingly, the 

Law Enforcement Defendants’ Rule 12(b)(6) Motion to Dismiss is DENIED as 

untimely.” The decision therefore is not based on a legal evaluation of the 

Appellants’ entitlement to qualified immunity. We take the district court at its 

word and decline to hold that the district court inadvertently made a final legal 

determination as to whether the Appellants are entitled to qualified immunity. 

 

3 District courts may consider untimely Rule 12(b)(6) motions as Rule 12(c) motions

(indeed they are sometimes encouraged to do so). See Delhomme v. Caremark Rx Inc., 232 

F.R.D. 573, 576 n.2 (N.D. Tex. 2005). 

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Accordingly, we note that nothing in the district court’s order bars the 

Appellants from asserting qualified immunity by appropriate, timely 

procedural vehicle in the future. See Kiser v. Garrett, 67 F.3d 1166, 1169 (5th 

Cir. 1995) (“It would be anomalous to conclude that a defendant waives a 

qualified immunity defense by dismissing as moot an interlocutory appeal that 

the defendant was not required to take in the first place.”).

III. 

Because the district court’s decision on the Rule 12(b)(6) motion was 

based on timing rather than a substantive legal disposition regarding qualified 

immunity, this court does not have jurisdiction to consider the appeal at this 

time. Therefore, we do not find it necessary to consider the alternative 

arguments presented by the Appellants. We DISMISS this appeal for lack of 

appellate jurisdiction. 

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