                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         December 7, 2006
                                     TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                            Clerk of Court

 JAMES CALVIN DYER,
               Plaintiff-Appellee,                           No. 06-5085
          v.                                          (D.C. No. 05-CV-249-JHP)
 JIM RABON; ARTHUR LIGHTLE;                                  (N.D. Okla.)
 CARLA M. RICKMAN, Individuals,
               Defendants-Appellants.



                             ORDER AND JUDGMENT *


Before, KELLY, McKAY, and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without argument.

See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument.

      Appellee filed this § 1983 action against various Oklahoma corrections officials

alleging violations of his Eighth and Fourteenth Amendment rights due to improper

administration of his prison sentence. According to Appellee, he initially was charged

with attempted robbery with a dangerous weapon in violation of 21 Okla. Stat. § 801.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
Ultimately, however, he was recharged with and pled guilty to robbery with force in

violation of 21 Okla. Stat. § 791. Appellee asserted that the corrections officials failed to

attribute to him sentence-reducing credits because they were calculating his credits based

on robbery with a dangerous weapon rather than robbery with force. Pursuant to 21 Okla.

Stat. § 13.1, persons convicted of, inter alia, robbery with a dangerous weapon are

required to serve not less than 85 percent of any prison term before becoming eligible for

parole consideration. Appellee’s various complaints to the corrections officials failed to

resolve the miscalculation. He subsequently sought relief from the state court, which

issued an Amended Judgment and Sentence to reflect that his conviction fell under 21

Okla. Stat. § 791, prompting recalculation of his credits, modification of his sentence, and

his immediate release from prison.

       This action was filed in May 2005, seeking damages for Appellants’ allegedly

unconstitutional acts. In June 2005, Appellants filed their respective motions for

summary judgment asserting qualified immunity. In January 2006, the district court held

a scheduling conference at which a scheduling order was imposed that set discovery and

dispositive motion deadlines, among others. Appellants then moved to stay discovery

until a ruling on the motions for summary judgment was issued. On March 30, 2006, the

district court issued a minute order striking the pending summary judgment motions, to be

reurged consistent with the scheduling order, and finding the motion to stay moot.

       Appellants argue on appeal that the district court erred in refusing to address their

respective qualified immunity motions and that this refusal is immediately appealable.

Appellee argues that because the district court has not yet ruled on the issue of qualified
immunity, the issue is not ripe for appeal.

       Our decisions in Workman v. Jordan, 958 F.2d 332 (10th Cir. 1992), and Lowe v.

Town of Fairland, Okla., 143 F.3d 1378 (10th Cir. 1998), make clear that a district

court’s postponement of or failure to rule on a qualified immunity defense is immediately

appealable. This result is driven by the purpose behind qualified immunity, which

protects an official not only from liability, but also “from the ordinary burdens of

litigation, including far-ranging discovery.” Workman, 958 F.2d at 335 (noting the

appropriate discovery limitations that district courts impose when qualified immunity

motions are outstanding). Accordingly, we may properly turn to the merits.

       These same two cases, however, also make clear that this court should not

determine whether qualified immunity exists where the district court has not yet passed

upon the issue. As pointed out in Workman, although Appellants ask us to determine this

issue, and this court has honored such a request in at least one other case, see Laidley v.

McClain, 914 F.2d 1386, 1394 (10th Cir. 1990), we believe the better practice is to

remand such a determination to the district court, see Workman, 958 F.2d at 336-37.

       Accordingly, the minute order striking the pending motions for summary judgment

is REVERSED, and the matter is REMANDED to the district court for immediate

consideration of the Appellants’ respective qualified immunity challenges.


                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge
