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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 14-30069                      February 20, 2015
                                                                           Lyle W. Cayce
JORDAN DARRELL ZANTIZ,                                                          Clerk


              Plaintiff - Appellee

v.

RONNIE SEAL, Captain; WADE RIGDON, Lieutenant; BRUCE FORBES,
Sergeant - EMT; LESTER MITCHELL, Captain; HEATHER WARNER,
Sergeant; RHONDA DISTEFANO, Sergeant Master; CRAIG KENNEDY,
Major; FRANK CLELAND, Captain Food Service/Security; CARLA TULLOS,
Sergeant Master,

              Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1580


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Pro se appellee Jordan Darrell Zantiz (“Zantiz”), previously an inmate at
Louisiana’s Rayburn Correctional Center (“Rayburn”), sued appellants, nine
Rayburn employees (collectively, “appellants”), under state law and 42 U.S.C.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 14-30069
§ 1983 for use of excessive force, failure to protect, and deficient provision of
medical care.      This interlocutory appeal involves the appellants’ federal
qualified immunity defenses.           Five appellants appeal the denial of their
qualified immunity defenses, one at the motion to dismiss stage and the others
at the summary judgment stage. All nine appellants appeal the discovery
order issued below. We AFFIRM the orders denying the motion to dismiss and
the motion for summary judgment, but we VACATE the discovery order as to
five of the appellants.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Zantiz’s pro se, verified complaint alleges the following. On December
31, 2011, appellant Sergeant Rhonda Distefano (“Distefano”) escorted Zantiz
to the dining hall to speak to appellant Captain Lester Mitchell (“Mitchell”)
about a previous incident. At the conclusion of this discussion, Mitchell told
Zantiz that he was going to be “lock[ed] up pending investigation.” Zantiz
responded, “That’s cool.” Appellant Captain Ronnie Seal (“Seal”) handcuffed
Zantiz with his hands behind his back, “and then punched [Zantiz] on [his] left
ear and twisted the cuffs and grabbed [his] shirt collar.” Zantiz asked Mitchell
why Seal was punching him, and Mitchell responded, “Oh well.” Seal then
“began pushing [Zantiz] out of the dining hall, yelling racial things in [his] ear.”
       When Zantiz and Seal reached “‘A’ walk,” Seal punched Zantiz again and
ordered appellant Sergeant Master Carla Tullos (“Tullos”) to open the gate. As
Zantiz and Seal walked “down the sidewalk in between ‘B’ building and the
‘ED’ building, Lt. Seal jerked [Zantiz’s] collar and started yelling in [his] ear
about how he hates smart-ass niggers.” 1 Then, “[a]t the end of the sidewalk
just before [they] hit the asphalt, Lt. Seal forced [Zantiz] to the ground and



       1 The appellant’s brief informs us that Lieutenant Seal has since been promoted to the
rank of captain.
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                                 No. 14-30069
began kneeing [him] in the back, and side areas (left) repeatedly.” Shortly
thereafter, Zantiz’s “legs were crossed and someone began stomping on [his]
back, butt and leg.” When Zantiz looked back, he saw appellant Lieutenant
Wade Rigdon (“Rigdon”) “twisting/pulling [his] feet cross [sic] each other.” Seal
“continued kicking and stomping” Zantiz. Seal “then began lifting [Zantiz’s]
arms up and kneed [him] in the back once again. [Seal] put his arm around
[Zantiz’s] neck choking [him,] yelling in [his] ear” various racist threats. When
Zantiz looked up, he saw that Tullos and appellant Sergeant Heather Warner
(“Warner”) had witnessed the incident.
      Later, once Zantiz was “secured in sleet unit confinement,” Seal brought
appellant Emergency Medical Technician (“EMT”) Sergeant Bruce Forbes
(“Forbes”) to see Zantiz. Forbes “noticed that [Zantiz’s] left ear was bleeding
and joked about [him] still having a [sic] ear.” Zantiz “showed [Forbes] the rest
of [his] injuries and hurting spots. EMT Forbes pressed on a area on [his] left
side and informed Lt. Seal that [he had] a fractured rib, but told [Seal] that
[Zantiz] would live.” Forbes “told Lt. Seal that [Zantiz’s] wrist, ankles, back
and everything else would heal up in a few weeks.” Zantiz “told [Forbes] that
[he] want[ed] to see the doctor. He replied, ‘No you don’t,[ ] your black ass
shouldn’t have pissed Lt. Seal off.’” Zantiz complained that he had just been
beaten by Seal, and Seal and Forbes laughed and told Zantiz “to lay down for
a couple of days.” Zantiz “asked EMT Forbes if he was deliberately denying
[him] medical treatment. He replied, ‘yeah,[ ] what can you do about it’ and
walked away with Lt. Seal.”
      The magistrate judge assigned to the case held a Spears hearing. That
testimony is “incorporated into [Zantiz’s] pleadings.” Eason v. Holt, 73 F.3d




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                                      No. 14-30069
600, 602–03 (5th Cir. 1996). 2 At the Spears hearing, Zantiz testified under
oath.       His Spears testimony was broadly consistent with his complaint,
although he added a few more facts. For example, he estimated that the entire
altercation may have lasted about 15 minutes. He also testified that, as of
September 4, 2012, he still had “a big old knot” in his poked eye, he had been
“having back problems ever since the incident,” his ear still “pusse[d] from time
to time,” and he still had neck and tailbone pain, although his ribs had stopped
hurting around April of 2012. He testified that, during the three shifts after
the alleged beating, he told staff that he was having trouble breathing, but
they declined to provide treatment, telling him he had already been treated by
Forbes. Zantiz testified that he had not sought medical treatment after that,
however, “because Medical had a chance to correct the situation and they have
not done anything to correct the situation at all.”
        Zantiz also provided testimony about the named defendants he had not
discussed in his original complaint. He testified that Distefano and appellant
Major Craig Kennedy (“Kennedy”) were present in the dining hall when Seal
first hit Zantiz in the side of the head, but they did nothing. He also testified
that appellant Captain Fred Cleland (“Cleland”) “threatened to bust me up
when I walked up in there because he said I needed to mind my own business.” 3




        2A Spears hearing helps determine whether a prisoner’s in forma pauperis lawsuit
should be dismissed as frivolous under 28 U.S.C. § 1915. Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), abrogated in part on other grounds by Neitzke v. Williams, 490 U.S. 319, 328
(1989). The Spears hearing is conceptualized as a motion for more definite statement under
Federal Rule of Civil Procedure 12(e). Id. at 181–82. Accordingly, Spears hearing testimony
is “incorporated into the pleadings.” Eason, 73 F.3d at 602–03.
        3From the Spears testimony and the complaint, it is not entirely clear whether
Cleland was present during the dining hall incident or the later incident. But, because
Zantiz’s testimony about Cleland was immediately after testimony about other people
present in the dining hall, it is reasonable to assume that Cleland witnessed the dining hall
incident. The district court also reached this conclusion.

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                                     No. 14-30069
      Based on Zantiz’s complaint and Spears testimony, the magistrate judge
determined that Zantiz was suing Seal and Rigdon for use of excessive force,
Forbes for inadequate provision of medical care, and Mitchell, Tullos, Warner,
Distefano, Kennedy, and Cleland for failure to protect. 4 The district court
agreed with the magistrate judge’s breakdown of the legal theories alleged
against each appellant.
      Forbes filed a motion to dismiss based on his qualified immunity defense,
arguing that he had not violated the Constitution. He argued that Zantiz had
not had a serious medical need, and therefore Forbes could not be liable for
deliberate indifference to a serious medical need. Forbes acknowledged that
the alleged injuries, taken alone, would have been a serious medical need, but
he argued that Zantiz must have been lying about the extent of the injuries
because he never requested any additional medical treatment. The district
court denied Forbes’s motion to dismiss, rejecting his argument that Zantiz
failed to seek additional treatment because his Spears testimony indicated that
he asked for medical treatment during the three shifts after the alleged
beating.
      Mitchell, Cleland, Kennedy, and Distefano (collectively, the “summary
judgment defendants”) filed a motion for summary judgment based on
qualified immunity, arguing that they had not violated the Constitution. The
summary judgment defendants were the Rayburn staff who allegedly failed to
protect Zantiz in the dining hall. They submitted a video allegedly showing
Seal handcuffing Zantiz in the dining hall. In the video, Seal does not hit or
drag Zantiz. Accordingly, the summary judgment defendants argued that Seal
did not use any force against Zantiz in the dining hall, so they cannot be liable



      4  Zantiz also sued Rayburn’s warden, but the warden was dismissed from the suit and
is not a party to this appeal.

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                                 No. 14-30069
for failure to protect. They also argued that, even if Seal hit or otherwise used
force against Zantiz in the dining hall, there was no evidence that they could
have stopped Seal’s use of force. The district court denied the motion for
summary judgment, holding that, because the video footage only showed
approximately nine seconds of Seal’s interaction with Zantiz, the footage was
insufficient to controvert Zantiz’s allegations about the dining hall incident.
The district court did not directly deal with the summary judgment defendants’
contention that any alleged use of force would have happened too quickly for
them to intervene.
      Before the district court ruled on Forbes’s motion to dismiss or the
motion for summary judgment, Zantiz filed a motion to compel discovery. All
appellants objected to Zantiz’s motion to compel on qualified immunity
grounds.   They argued that they were completely immune from discovery
because their qualified immunity defenses had not been considered.           The
magistrate judge granted Zantiz’s motion to compel discovery in part,
determining that only some of the requested discovery was relevant to deciding
the issue of qualified immunity. The discovery order required the production
of: “various employee conduct and training manuals and written policy
statements, but only insofar as they relate to use of force against inmates,
protection of inmates, their medical care and racial discrimination”;
administrative remedies procedure materials “that relate to any grievance
asserted by plaintiff” for the December 31, 2011 incident; each appellant’s
employment file for in camera review; and “the investigative materials
concerning the subject prison incident in this case” for in camera review. The
appellants appealed the magistrate judge’s discovery order to the district court,
which dismissed the appeal as moot because, in the interim, it had rejected
Forbes’s and the summary judgment defendants’ qualified immunity defenses.
The district court did not specifically mention Seal, Rigdon, Tullos, or Warner,
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                                  No. 14-30069
the appellants who had not yet filed motions raising the qualified immunity
defense.
      Forbes appeals the denial of his motion to dismiss.          The summary
judgment defendants appeal the denial of their motion for summary judgment.
And all appellants appeal the discovery order. Zantiz did not file a response
brief for the appeal.
                  JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction to review a district court’s interlocutory denial of a
qualified immunity defense only “to the extent that the appeal turns on an
issue of law.” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (internal
quotation marks and citations omitted) (interlocutory denial of motion for
summary judgment); Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)
(interlocutory denial of motion to dismiss).
      We review de novo the denial of a motion to dismiss, taking all well-
pleaded facts as true. Brown, 519 F.3d at 236. We also review de novo denial
of a summary judgment motion, taking the facts in the light most favorable to
the nonmoving party. Luna v. Mullenix, 773 F.3d 712, 718 (5th Cir. 2014).
That said, “[w]hen one party's description of the facts is discredited by the
record, we need not take his word for it but should view ‘the facts in the light
depicted by [a] videotape.’” Newman v. Guedry, 703 F.3d 757, 761 (5th Cir.
2012) (quoting Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Further, because
this appeal is interlocutory, “we consider only whether the district court erred
in assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.” Luna, 773 F.3d at
718 (internal quotations marks and citation omitted). “We may review the
district court’s conclusion that issues of fact are material, but not the
conclusion that those issues of fact are genuine.” Id. (internal quotation marks
omitted). “If the district court does not specify all the facts that it finds to be
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                                 No. 14-30069
in dispute, we conduct an analysis of the record to determine what issues of
fact the district court likely considered genuine.” Kovacic v. Villarreal, 628
F.3d 209, 211 n.1 (5th Cir. 2010) (internal quotation marks and citation
omitted).
      We generally lack jurisdiction to review discovery orders.       Backe v.
LeBlanc, 691 F.3d 645, 647–48 (5th Cir. 2012). But we have jurisdiction to
review certain discovery orders in cases involving the qualified immunity
defense. Id. at 648. In particular, we have jurisdiction to review such a
discovery order if the district court does not first determine whether the
plaintiff’s pleadings, taken as true, are sufficient to overcome the qualified
immunity defense. Id. We also have jurisdiction to consider a discovery order
that has not been “narrowly tailored to uncover only those facts needed to rule
on the immunity claim.” Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507–
08 (5th Cir. 1987)). We review such orders for abuse of discretion. See id. at
648–49 (reversing such an order because the district court abused its discretion
by issuing it).
                                 DISCUSSION
I. Forbes’s Motion to Dismiss
      Zantiz’s federal claim against Forbes alleges constitutionally deficient
medical care. “[D]eliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain prescribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal
quotation marks and citation omitted). We have defined a “serious medical
need” as “one for which treatment has been recommended or for which the need
is so apparent that even laymen would recognize that care is required.” Gobert
v. Calwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
      Forbes argues that he is entitled to dismissal because Zantiz does not
identify any serious medical need. But this argument is waived because, at
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                                        No. 14-30069
the district court level, Forbes admitted that Zantiz’s combination of alleged
injuries would qualify as a serious medical need. That is, in his motion to
dismiss, Forbes stated:
       Accepting the allegations as true that plaintiff’s injuries from the
       use of force included a bloody ear that, months later, still “pusses,”
       that the EMT told the Lieutenant the plaintiff had a fractured rib,
       he had a “knot in the eye,” and his back and neck have hurt since
       the incident, there is no doubt plaintiff would have identified a
       “serious medical need” for purposes of the Eighth Amendment
       analysis.
Thus, Forbes expressly disclaimed any argument that these allegations, taken
as true, were not a serious medical need.
       “Under our general rule, arguments not raised before the district court
are waived and will not be considered on appeal unless the party can
demonstrate ‘extraordinary circumstances.’” State Indus. Prods. Corp. v. Beta
Tech., Inc., 575 F.3d 450, 456 (5th Cir. 2009). The burden is on Forbes to
demonstrate that such extraordinary circumstances exist. Id. But he has not
argued that extraordinary circumstances exist. Thus, Forbes has waived his
argument that Zantiz’s injuries were not a serious medical need.
       Forbes also argues that Zantiz’s failure to seek additional treatment
undermines his deliberate indifference claim. 5 But it is not dispositive that
the possibly fractured rib and other injuries did not later cause Zantiz such
serious medical problems that he sought additional treatment. The question
is whether there was a substantial risk to the patient at the time that Forbes
allegedly refused to provide additional treatment, not whether that risk




       5  This argument is not waived because Forbes argued in his motion to dismiss that
the fact that Zantiz did not later seek medical treatment indicated that Zantiz “either . . . lied
about suffering the injuries or exaggerated their severity.”

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                                     No. 14-30069
actually materialized. Gobert, 463 F.3d at 349 n.30. 6 Thus, the fact that Zantiz
never received additional medical treatment is irrelevant, except insofar as it
tends to impeach Zantiz’s sworn allegation that he suffered the alleged
injuries. Of course, we cannot weigh these facts at the motion to dismiss stage.
         Forbes also argues that he was not aware of a substantial risk of harm
to Zantiz, so he was not deliberately indifferent. We disagree. Again, Zantiz’s
complaint alleges that Forbes verbally acknowledged that Zantiz was suffering
from what Forbes now admits were serious medical needs, but Forbes refused
to treat these injuries, telling Zantiz that “your black ass shouldn’t have pissed
Lt. Seal off.” Taking these allegations as true, as we must, Forbes was aware
of a serious medical need and refused to treat it without any justifiable medical
or penological reason. Deliberate indifference can be demonstrated through
such a refusal to treat. Gobert, 463 F.3d at 346.
         Forbes argues that his lack of knowledge of a serious medical need is
proven by a medical record he wrote concerning Zantiz’s injuries on the date of
the alleged beating. Among other things, this record notes that there was “no
redness or bruising.” We cannot consider this record at the motion to dismiss
stage.       Forbes cites cases where we have considered medical records in
reviewing either the dismissal of a prisoner’s in forma pauperis lawsuit as
frivolous or the denial of a motion for summary judgment based on qualified
immunity. But Forbes points to no cases where we have considered medical
records at the motion to dismiss stage. Evidence that is outside the pleadings



        Forbes’s argument that Zantiz “must have suffered objective harm from the allegedly
         6

inadequate treatment” also fails. He cites Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993), for the proposition that “delay in medical care can only constitute an Eighth
Amendment violation if there has been deliberate indifference, which results in substantial
harm.” But here Zantiz is alleging not that Forbes provided him with delayed medical care,
but instead that Forbes denied him medical care altogether. Thus, we find Mendoza
inapposite. See Gobert, 463 F.3d at 349 n.30.

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                                 No. 14-30069
cannot be considered for a motion to dismiss.       See Fed. R. Civ. P. 12(d)
(providing that, for a motion to dismiss, “matters outside the pleadings” must
be excluded by the court, or the motion “must be treated as one for summary
judgment”).
II. Motion for Summary Judgment
      On appeal, the summary judgment defendants raise the same arguments
that they raised below. First, they argue that the video conclusively shows
that Zantiz’s version of events in the dining hall is untrue. We disagree. As
the district court noted, the video shows only about nine seconds of the
interaction between Seal and Zantiz, during which time Seal handcuffs Zantiz
and leads him off-frame. The video continues for approximately twenty-two
additional seconds after Seal and Zantiz leave the frame. Moreover, the dining
hall’s exit is not visible in the video. Thus, the video shows nothing regarding
what happened between the time Seal and Zantiz leave the frame and the time
they exit the dining hall.
      The summary judgment defendants argue that the video contradicts
Zantiz’s Spears testimony, in which he testified that “I put my hands behind
my back and while Mr. Mitchell was talking to me Lieutenant Seal came
behind me, placed handcuffs on me, and punched me in the side of the head,”
and that Zantiz then asked Mitchell why Seal was punching him. In contrast,
the video shows Seal handcuffing Zantiz, but it does not show Seal punching
Zantiz or Zantiz speaking to Mitchell after being handcuffed. But Zantiz’s
Spears testimony does not specifically state that he was punched immediately
after the handcuffs were applied, or that he spoke to Mitchell immediately
after this punch.    The verified complaint is even less specific about the
timeline, stating only that Seal punched him after he was handcuffed, and
Zantiz spoke to Mitchell after that. Thus, we cannot say that the district court
disregarded a video that completely discredits Zantiz’s version of events.
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                                  No. 14-30069
      This situation is quite unlike that in Scott v. Harris, which held that the
court of appeals erred in adopting the plaintiff’s version of events when “[t]he
videotape quite clearly contradicts [the plaintiff’s] version of the story.” 550
U.S. at 378–81. Instead, the district court here carefully considered the video
and found that there was still a genuine issue of fact as to whether Seal
punched Zantiz in the dining hall. See Newman, 703 F.3d at 762 (holding that,
because there was “nothing in the three video recordings to discredit
[plaintiff’s] allegations,” plaintiff’s version of events controlled for summary
judgment purposes). We lack jurisdiction to review the district court’s factual
determination when it is not wholly contradicted by the video evidence.
Johnson v. Jones, 515 U.S. 304, 319–20 (1995); Luna, 773 F.3d at 718 (“We
may review the district court’s conclusion that issues of fact are material, but
not the conclusion that those issues of fact are genuine.” (internal quotation
marks and citation omitted)).
      In the alternative, the summary judgment defendants argue that, given
the short amount of time that Seal and Zantiz spent in the dining hall, they
could not have intervened to protect Zantiz. A bystander liability claim like
this one requires that the bystander officers “(1) know[ ] that a fellow officer is
violating an individual’s constitutional rights; (2) ha[ve] a reasonable
opportunity to prevent the harm; and (3) choose[ ] not to act.” Whitley v.
Hanna, 726 F.3d 631, 646 (5th Cir. 2013) (internal quotation marks omitted).
The summary judgment defendants argue that the second element is not met
because they could not have stopped Seal’s excessive use of force.
      The district court did not specifically address this argument. But we
hold that it likely found a genuine issue of fact as to the speed of the encounter,
and thus the window of time in which to intervene. See Kovacic, 628 F.3d at
211 n.1 (“[W]e conduct an analysis of the record to determine what issues of
fact the district court likely considered genuine.” (internal quotation marks
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                                 No. 14-30069
omitted)). Again, the video does not provide a complete view of the dining hall.
Zantiz’s verified complaint and Spears testimony do not definitively establish
how quickly the events in the dining hall took place. There is no other evidence
in the summary judgment record that is directly related to the timing of the
dining hall incident. But Zantiz alleges in his sworn complaint that Seal
“punched me on my left ear and twisted the cuffs and grabbed my shirt collar.”
Other staff members “clearly observed” this punch. Zantiz asked Mitchell why
Seal punched him, and Mitchell responded “[o]h well” and ignored him. At the
Spears hearing, Zantiz provided sworn testimony that Seal then forced him out
of the dining hall and, as they were going out the side door, punched him again.
      We hold that the district court likely found that this evidence creates a
genuine dispute about the timing of events within the dining hall. Zantiz’s
sworn allegations, taken together, give rise to the inference that the events in
the dining hall proceeded slowly enough that the summary judgment
defendants could have intervened. Thus, this question of timing is material as
to whether the summary judgment defendants had a reasonable opportunity
to prevent Seal’s second punch and other uses of force following the first punch.
III. Discovery Order
      All nine appellants appeal the discovery order. We conclude that this
appeal is moot as to the summary judgment defendants. The district court
determined that their qualified immunity defenses fail at the summary
judgment stage, and we affirm that holding. Thus, Zantiz is entitled to all
appropriate discovery as to the summary judgment defendants, even discovery
that does not relate to the qualified immunity defense.
      As to the remaining appellants, we must determine whether we have
jurisdiction to review the discovery order. We have jurisdiction to review such
an order if it does not follow the two-step procedure that we have mandated in
qualified immunity cases. Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014).
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                                       No. 14-30069
First, the district court must determine that the plaintiff’s well-pleaded facts,
taken as true, would overcome the qualified immunity defense. Id. at 485.
Second, “if the court remains unable to rule on the immunity defense without
further clarification of the facts, it may issue a discovery order narrowly
tailored to uncover only those facts needed to rule on the immunity claim.” Id.
(internal quotation marks omitted).                Such an order must “identify any
questions of fact [the district court] need[s] to resolve before it would be able to
determine whether the defendants [are] entitled to qualified immunity.” Id. 7
       We conclude that we have jurisdiction to review the discovery order here
because it did not fulfill either step of this analysis. First, the order did not
explicitly hold that Zantiz’s pleadings, taken as true, overcame the qualified
immunity defense. While some of the language in the discovery order implies
that the magistrate judge thought that the pleadings overcame the qualified
immunity defense, we have held that this holding must be made explicitly. Id.
at 485 n.2. 8




       7  One added complication is that Seal, Rigdon, Warner, and Tullos have not yet filed
a motion to dismiss or motion for summary judgment based on the qualified immunity
defense, unlike in our previous cases dealing with the interlocutory appeal of discovery
orders. But all four of these appellants raised the qualified immunity defense in their
answer, and they all argued to the magistrate judge and the district court that Zantiz’s
discovery motion should be denied based on the qualified immunity defense. Further, a
district court need not rule on a motion to dismiss based on qualified immunity before issuing
a discovery order. Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 997 n.27 (5th Cir. 1995).
Accordingly, we hold that filing a motion to dismiss is not required before a defendant can
assert qualified immunity as a defense to a discovery order.
       8 We note that the discovery order’s error in failing to perform the first step of Zapata
is moot as to Forbes because, in its later denial of Forbes’s motion to dismiss, the district
court ruled that Zantiz’s pleadings overcame Forbes’s qualified immunity defense. See Foster
v. City of Lake Jackson, 28 F.3d 425, 428 n.6 (5th Cir. 1994) (holding that appeal of an order
requiring defendants to “submit to discovery before adjudication of qualified immunity” was
mooted by district court’s subsequent ruling that defendants were not entitled to qualified
immunity). But, in denying the motion to dismiss, the district court did not determine
whether Forbes’s qualified immunity defense would fail on summary judgment. Thus, he
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                                         No. 14-30069
       The discovery order also fails the second step of Zapata. Even a “limited
discovery” order does not satisfy the second step if “the district court [does] not
identify any questions of fact it need[s] to resolve before it would be able to
determine whether the defendants [are] entitled to immunity.” Zapata, 750
F.3d at 484–85. Here, the discovery order fails under this standard because it
does not identify the questions of fact that needed to be resolved before the
qualified immunity issue could be addressed.
       Thus, we conclude that the magistrate judge abused his discretion in
issuing a discovery order that did not perform either of the steps described in
Zapata. See Backe, 691 F.3d at 648 (finding abuse of discretion based on failure
to perform steps described in Zapata). However, any error is moot as to the
summary judgment defendants. 9
                                         CONCLUSION
       For the forgoing reasons, we AFFIRM the district court’s order denying
Forbes’s motion to dismiss. We also AFFIRM its order denying summary
judgment to the summary judgment defendants (Mitchell, Cleland, Kennedy,
and Distefano). We DISMISS AS MOOT the summary judgment defendants’
appeal of the discovery order. We VACATE the discovery order as to Seal,
Rigdon, Warner, Tullos, and Forbes, and we REMAND with instructions to
apply the two-step procedure described in Zapat




was still entitled to the application of Zapata’s second step limiting discovery, and his appeal
as to this second step is not moot.
       9   And, again, the error in applying the first step is moot as to Forbes.
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   Case: 14-30069     Document: 00512943213     Page: 16   Date Filed: 02/20/2015




                                 No. 14-30069


E. GRADY JOLLY, Circuit Judge, dissenting in part:
      An officer’s “mere presence at the scene, without more, does not by some
mysterious alchemy render him legally responsible under section 1983 for the
actions of a fellow officer.” Calvi v. Knox Cnty., 470 F.3d 422, 428 (1st Cir.
2006). Here, Zantiz has only produced competent summary judgment evidence
to suggest that the summary judgment defendants were present at the time he
was allegedly punched by Seal in the dining hall. He has provided no basis
from which a jury could reasonably conclude that these defendants were in a
position to come to his aid and prevent any additional excessive force. Cf. Hale
v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Accordingly, I respectfully dissent
from the majority’s holding denying the defendants summary judgment on the
basis of qualified immunity.




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