                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1768
                         ___________________________

                                      James Spann,

                          lllllllllllllllllllllPlaintiff - Appellee,

                                             v.

George A. Lombardi; Dave Dormire; Alan Earls; Jay Cassady; Brian Schmutz; Jim
  Wakeman; Nick Miller; Timothy Murray; Noel Obinaduke, formerly named as
Noel Obi; April Purifoy; Shane Counts; Michael Cahalin; Raina Martin; Kelly Deardeuff,

                       lllllllllllllllllllllDefendants - Appellants.
                                          ____________

                      Appeal from United States District Court
                for the Western District of Missouri - Jefferson City
                                  ____________

                            Submitted: February 11, 2020
                                Filed: June 3, 2020
                                  ____________

Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.
                              ____________

COLLOTON, Circuit Judge.

      James Spann is a Missouri inmate who is confined at the Jefferson City
Correctional Center. He sued several prison officials in their individual capacities
under 42 U.S.C. § 1983, challenging a disciplinary adjudication, conditions of
confinement, adequacy of medical treatment, and alleged retaliatory acts. The district
court ultimately denied motions to dismiss and for summary judgment, and the officials
appeal to assert a defense of qualified immunity.

        The case has a convoluted procedural history. In 2014 and 2016, Spann filed
two separate civil actions against prison officials and medical professionals employed
by a contractor. The district court eventually appointed counsel to represent Spann in
April 2016, and consolidated the two actions in August 2016. Spann’s counsel then
filed a consolidated amended complaint to encompass all of Spann’s claims, and later
filed a consolidated second amended complaint in December 2016.

       On August 15, 2017, the district court granted a motion to dismiss two Eighth
Amendment claims alleging unconstitutional conditions of confinement and deliberate
indifference to medical needs. R. Doc. 214, at 4. The court concluded that Spann
failed to state a claim on those counts, so it was unnecessary for the court to address
the officials’ alternative defense of qualified immunity.

       In the meantime, Spann had filed another pro se action in May 2017. On August
30, 2017, the district court consolidated this third case with the other two, and Spann’s
counsel filed an amended complaint for the third case only. R. Doc. 250. Consistent
with its previous order dismissing Eighth Amendment claims, the district court on
March 5, 2018, dismissed a renewed claim alleging deliberate indifference to medical
needs. R. Doc. 277, at 3.

       Then on March 12, 2018, Spann filed a “Consolidated Third Amended
Complaint” that encompassed all three of the original pro se lawsuits and asserted five
claims. R. Doc. 282. Count I alleged a due process violation arising from a prison
disciplinary action. Counts II and III realleged the Eighth Amendment claims that the
district court previously dismissed. Count IV asserted unlawful retaliation for filing
grievances, and Count V alleged a civil conspiracy to violate rights under the First,

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Eighth, and Fourteenth Amendments. Spann acknowledged that the district court
already had dismissed the Eighth Amendment claims.

       This appeal involves the district court’s rulings on two motions filed in
November 2018. Spann moved the court to reconsider its decision from August 2017
dismissing his Eighth Amendment claim against Missouri officials alleging
unconstitutional conditions of confinement. R. Doc. 385. At the same time, the
officials filed their own motion for summary judgment on the due process, retaliation,
and civil conspiracy claims that were alleged in the March 2018 complaint. R. Doc.
390.

       On the motion for reconsideration, the district court granted Spann’s request and
reinstated Count II and its assertion of unconstitutional conditions of confinement. R.
Doc. 512. The court concluded that its August 2017 order did not adequately address
Spann’s allegations on this count, and determined on reconsideration that Spann stated
claims against the officials under the Eighth Amendment. The court did not address
whether the claims were barred by qualified immunity.

       On appeal, the officials argue that they are entitled to a ruling on their defense
of qualified immunity as to Count II, and we agree. The officials argued qualified
immunity in support of their motion to dismiss the claim when the court originally
decided it. R. Doc. 178, at 22-24. The district court found it unnecessary to address
that point, because it ruled that Spann’s complaint did not even state a claim under the
Eighth Amendment. On reconsideration, the court reversed itself on whether that
complaint adequately alleged a constitutional violation, but never returned to the
remainder of the motion to dismiss and the defense of qualified immunity.

       The officials properly raised and briefed the defense of qualified immunity in
their motion to dismiss. The officials did not abandon the argument when they opposed
the motion for reconsideration on the ground that the court ruled correctly the first time.

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Therefore, we conclude that the court should have addressed the defense. Because the
order granting the motion for reconsideration effectively denied the officials’ motion
to dismiss without ruling on qualified immunity, we will remand the case for further
proceedings to address the question of qualified immunity on Count II. See Payne v.
Britten, 749 F.3d 697, 700-01 (8th Cir. 2014).

       As to the remaining claims, the district court denied the officials’ motion for
summary judgment. R. Doc. 522. The officials argue on appeal that the district court
erred here too by failing to address the defense of qualified immunity. The motion for
summary judgment, however, did not present an argument based on qualified immunity.
The motion mentioned “immunities” only once in a concluding sentence on page 23 of
the motion: “State Defendants reassert the defenses alleged in prior Motions to
Dismiss, as the uncontroverted facts support all claims of privileges and immunities
stated in those motions. See Docs. 29, 178, and 229 which are all incorporated by
reference.” R. Doc. 390, at 23.

       The district court denied the motion “to the extent it reasserts by reference
defenses of privileges and immunities alleged in prior motions to dismiss.” The court
explained that all of the prior motions were filed before Spann brought the consolidated
third amended complaint that was at issue. The court also observed that the officials
did not offer any evidence relating to their affirmative defenses in their briefing on the
motion for summary judgment. The court thus ruled that the officials failed to properly
plead or carry their burden of proof as to any “defenses of privileges and immunities.”

       We conclude that the district court did not abuse its discretion on this issue.
Although the officials could avoid waiver of the defense by incorporating prior
pleadings by reference in their answer, see R. Doc. 289, at 43, and then arguing the
defense with more specificity later, see First Union Nat. Bank v. Pictet Overseas Tr.
Corp., 477 F.3d 616, 622-23 (8th Cir. 2007), a district court does not abuse its
discretion by declining to address an argument for summary judgment that is not

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properly briefed. The officials’ motion for summary judgment does not even mention
the term “qualified immunity.” The motion makes no argument for qualified immunity
based on the law and facts of the case as they stood in November 2018. The district
court was not required to pore over papers that were filed in July 2015, December
2016, and October 2017, at different procedural junctures, to discern arguments about
unspecified “privileges and immunities” that were supposedly directed at a complaint
filed in March 2018. If any of the officials sought a ruling on qualified immunity as to
any particular claim or claims in the pending complaint, then they should have argued
the point in their motion. We therefore reject the challenge to the order denying the
motion for summary judgment, but the officials may assert a defense of qualified
immunity at trial. See Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 752 (6th Cir.
2015); Narducci v. Moore, 572 F.3d 313, 325 (7th Cir. 2009).

      For these reasons, we remand the case for further consideration of the officials’
defense of qualified immunity on Count II. We reject the challenge to the order
denying summary judgment on the remaining counts.

STRAS, Circuit Judge, concurring in part and dissenting in part.

       The court affirms a discretionary call that I am not sure the district court actually
made. I cannot tell whether it declined to address qualified immunity at summary
judgment because of inadequate briefing, inadequate pleading, or something else
entirely, so I would remand the whole case. See Payne v. Britten, 749 F.3d 697, 699,
701 (8th Cir. 2014); see also H & R Block Tax Servs. LLC v. Acevedo-Lopez, 742 F.3d
1074, 1078 (8th Cir. 2014) (remanding when the basis for the district court’s
discretionary decision was unclear).
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