Music Stops in Fifth Circuit’s Qualified Immunity ‘Dance,’ Leaving Plaintiffs With Shortened Discovery Period
by Matt Clarke
On June 17, 2022, the U.S. Court of Appeals for the Fifth Circuit overturned a long line of prior decisions to hold that a ruling on defendants’ qualified immunity (QI) must be made at the first possible opportunity — and before discovery.
The Court’s new direction came in a case brought by the estate of Gary Lynch, who died of an infected heart valve — “aortic valve endocarditis with myocardial abscess” — while held in pretrial detention at Texas’ Hunt County Jail in February 2019. His mother, Gwendolyn Carswell, filed the suit the following year in federal court for the Northern District of Texas. Proceeding under 42 U.S.C. § 1983, she accused jailers of deliberate indifference to her son’s serious medical need, in violation of the Eighth Amendment guarantee of freedom from cruel and unusual punishment.
Defendants filed a motion to dismiss, asserting QI. In a routine scheduling order, the district court denied the motion without prejudice, instructing Defendants to use their answer to the order to assert their QI claims. The order also specifically permitted “Monell discovery,” allowing Plaintiff to seek evidence supporting her claims against the county for the actions of its employees, as permitted by Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).
Though they complied with the order, Defendants appealed it to the Fifth Circuit. While the appeal was pending, they also filed a motion to stay discovery. But the district court denied that motion, explaining that its scheduling order “attempts to follow the choreography of the Fifth Circuit’s QI dance.” QI claims, it said, should be made in a motion for summary judgment, based on the pleadings.
Defendants then got a stay of discovery from the Fifth Circuit. There, the three-judge panel took up their appeal. QI is “more than a ‘mere defense to liability’” but “also ‘an immunity from suit,’” the Court said, quoting Pearson v. Callahan, 555 U.S. 223 (2009). Therefore, the question of QI “must be determined ‘at the earliest possible stage of the litigation,’” the Court continued, quoting Ramirez v. Guadarrama, 3 F.4th 133 (5th Cir. 2021). Moreover, “one of the most important benefits of the [QI] defense is ‘protection from pretrial discovery, which is costly, time-consuming, and intrusive,’” the Court added, quoting Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012).
So when “public officials assert [QI] in a motion to dismiss, a district court must rule on the immunity question at that stage,” the Court declared. “It cannot defer that question until summary judgment. Nor can it permit discovery against the immunity-asserting defendants before it rules on their defense.”
The Court acknowledged that it had authorized discovery after a defendant asserted QI in a long line of cases, starting with Lion Boulos v. Wilson, 34 F.2d 504 (5th Cir. 1987). However, the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), clarified that plaintiffs are “not entitled to discovery” after [QI] is asserted but not yet ruled on. It did not matter to the Court that it cited its “careful procedure” for premature discovery after both Iqbal and a similar ruling in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
Why? Because those decisions did not consider whether the “careful procedure” could be squared with Iqbal and Twombly. Closing that gap, the Court held that no amount of discovery could be undertaken while the issue of QI was pending. It therefore vacated the district court’s scheduling order and remanded the case. See: Carswell v. Camp, 37 F.4th 1062 (5th Cir. 2022).
Plaintiff filed a petition for rehearing en banc before the full Fifth Circuit. When that was denied on November 30, 2022, the Court also substituted a revised opinion that no longer said Lion Boulos and other discovery-after-QI cases are “overruled” — though it otherwise arrived at the same conclusion. See: Carswell v. Camp, 2022 U.S. App. LEXIS 33072 (5th Cir.).
The Court’s fussiness about cleaning up appearances can’t disguise the jeopardy this creates for plaintiffs: Discovery is often the only way to name “Doe” defendants, and the statute of limitations to do so ticks closer every day that passes while waiting for a court’s QI determination. It would be far better for lawmakers to step up and do their job to establish legislative parameters for QI, which is a judicial construct, though one that tellingly leaves so-called “originalists” on the federal bench unbothered.
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