                                       UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                        No. 18-1524


TWANDA MARSHINDA BROWN; SASHA MONIQUE DARBY; CAYESHIA
CASHEL JOHNSON; AMY MARIE PALACIOS; NORA ANN CORDER; and
XAVIER LARRY GOODWIN and RAYMOND WRIGHT, JR., on behalf of
themselves and all others similarly situated,

             Plaintiffs – Appellees,

v.

GARY REINHART, in his individual capacity; REBECCA ADAMS, in her
official and individual capacities as the Chief Judge for Administrative Purposes of
the Summary Courts in Lexington County and in her official capacity as the Judge
of the Irmo Magistrate Court; BRYAN KOON, in his official capacity as the
Lexington County Sheriff,

             Defendants – Appellants,

and

LEXINGTON COUNTY, SOUTH CAROLINA; ROBERT MADSEN, in his
official capacity as the Circuit Public Defender for the Eleventh Judicial Circuit of
South Carolina; ALBERT JOHN DOOLEY, III, in his official capacity as the
Associate Chief Judge for Administrative Purposes of the Summary Courts in
Lexington County,

             Defendants.


Appeal from the United States District Court for the District of South Carolina, at
Columbia. Margaret B. Seymour, Senior District Judge. (3:17-cv-1426-MBS-SVH)


Argued: December 12, 2018                                      Decided: January 23, 2019
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Dismissed by unpublished opinion. Judge Duncan wrote the majority opinion, in which
Judge Wilkinson and Judge Motz joined. Judge Wilkinson wrote a concurring opinion.


ARGUED: Kenneth Paul Woodington, DAVIDSON, WREN & PLYLER, P.A.,
Columbia, South Carolina, for Appellants. Nusrat Jahan Choudhury, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees. ON
BRIEF: William H. Davidson, II, DAVIDSON WREN & PLYLER, P.A., Columbia,
South Carolina, for Appellants. Carl G. Snodgrass, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, New York, New York; Toby J. Marshall, Eric R. Nusser,
TERRELL MARSHALL LAW GROUP PLLC, Seattle, Washington; Susan K. Dunn,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA,
Charleston, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                            2
DUNCAN, Circuit Judge:

       Plaintiffs-Appellees are indigent individuals who were arrested and incarcerated in

Lexington County, South Carolina (the “County”) for failing to pay fines and fees to the

magistrate courts. They filed the instant action pursuant to 42 U.S.C. § 1983 on the basis

that once arrested, they were not brought before a judge, afforded a court hearing, or

granted court-appointed counsel.      In relevant part, Plaintiffs seek damages against

Defendants-Appellants--county magistrates Gary Reinhart and Rebecca Adams, and

Lexington County Sheriff Bryan Koon (“Defendants”)--for their oversight and

enforcement of alleged countywide policies and practices that purportedly caused

Plaintiffs’ unlawful arrests and incarceration.

       Defendants moved for summary judgment as to Plaintiffs’ damages claims based

on absolute immunity.      The district court denied the motion without prejudice and

ordered that the matter should proceed to discovery.

       Defendants subsequently filed this interlocutory appeal, asserting that they are

entitled to absolute immunity as to Plaintiffs’ claims for damages. Plaintiffs moved to

dismiss the appeal, arguing that this court lacks jurisdiction under the collateral order

doctrine. For the reasons that follow, we conclude that we lack jurisdiction over the

district court’s order and must therefore dismiss the appeal. Because we conclude that

we lack jurisdiction over this appeal, we do not reach the question of whether the district

court properly denied Defendants’ motion for summary judgment as to the damages

claims or otherwise address the merits of this action.



                                              3
                                             I.

       Plaintiffs allege that Lexington County is a municipal government entity that relies

on the collection of fines and fees imposed on defendants in traffic and misdemeanor

cases in the magistrate courts as an essential revenue source. To generate this revenue,

Defendants Reinhart and Adams, as the chief administrators of the magistrate courts, and

Defendant Koon, as the chief law enforcement officer, exercise their administrative

authority to establish, oversee, enforce, and sanction two unwritten administrative

policies and practices--the “default payment” policy and the “trial in absentia” policy.

       Under the default payment policy, indigent people sentenced to pay fines and fees

for traffic or misdemeanor convictions are placed on payment plans without regard to

whether they can afford the monthly payments.         Under the trial in absentia policy,

indigent people who do not appear for a scheduled traffic or misdemeanor hearing are

automatically tried in their absence, convicted, and sentenced to jail time suspended on

the payment of fines and fees.

       Under both policies, when indigent people fail to pay money owed to the

magistrate courts, bench warrants ordering their arrest and incarceration for nonpayment

issue automatically. They are then arrested and incarcerated by the Sheriff’s Department

unless they can immediately pay their entire debt to the magistrate courts. At no point

prior to or after their arrest and incarceration are these individuals afforded court-

appointed counsel or a determination by a magistrate court or bond court regarding their

ability to pay the fines and fees.



                                             4
       Pursuant to these policies, Plaintiffs Twanda Marshinda Brown, Sasha Monique

Darby, Cayeshia Cashel Johnson, Amy Marie Palacios, Nora Ann Corder, Xavier Larry

Goodwin, and Raymond Wright, Jr. were arrested and incarcerated in Lexington County

for failing to pay magistrate court fines and fees. Once arrested, none of the Plaintiffs

were brought before a judge, afforded a court hearing, or given the advice of counsel.

Unable to pay their debts, they spent weeks or months in jail. 1 Several Plaintiffs also

suffered from a host of collateral consequences due to their incarceration, including loss

of housing and employment.



                                             II.

       As a result of the foregoing, Plaintiffs brought the instant action. Pursuant to

§ 1983, they raise claims for violations of their Fourth, Sixth, and Fourteenth Amendment

rights against Defendants for their oversight and enforcement of the alleged policies and

practices that caused Plaintiffs’ unlawful arrests and incarceration.

       Before engaging in discovery, Defendants filed multiple motions for summary

judgment, including a motion as to Plaintiffs’ damages claims--the subject of this appeal.

Defendants argued that those claims should be dismissed because they are entitled to

judicial, quasi-judicial, or legislative immunity (the “asserted immunities”).




       1
         Aside from Plaintiff Wright, who was incarcerated for seven days, Plaintiffs
spent between twenty to sixty-three days in jail.


                                              5
       The district court denied Defendants’ motion without prejudice. In its order, the

district court found that there were outstanding issues of material fact as to whether the

challenged conduct is administrative and therefore not protected by immunity, as

Plaintiffs contend, or judicial, quasi-judicial, or legislative, as Defendants do. The court

thereby ordered that the matter proceed to discovery, citing our decision in Al Shimari v.

CACI International, Inc., for the proposition that it “is entitled to have before it a proper

record, sufficiently developed through discovery proceedings, to accurately assess any

claim, including one of immunity. And even a party whose assertion of immunity

[ultimately] proves worthy must submit to the burdens of litigation until a court becomes

sufficiently informed to rule.” Brown v. Lexington Cty., No. 3:17-CV-1426-MBS, 2018

WL 1556189, at *15 (D.S.C. Mar. 29, 2018) (quoting Al Shimari, 679 F.3d 205, 220 (4th

Cir. 2012) (en banc)).

       Following the district court’s decision, however, and before discovery, Defendants

filed this interlocutory appeal, seeking review of the district court’s order under 28

U.S.C. § 1291. Plaintiffs moved to dismiss the appeal, arguing that this court lacks

jurisdiction under the collateral order doctrine. Accordingly, we first determine, as we

must, whether we have jurisdiction to review the district court’s order. Iko v. Shreve, 535

F.3d 225, 233 (4th Cir. 2008) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (“[E]very federal appellate court has a special obligation to satisfy

itself . . . of its own jurisdiction.”)). We conclude that we do not.



                                             III.

                                              6
                                             A.

       We have long recognized that interlocutory appeals are generally disallowed, id. at

234, and that our jurisdiction is limited to “final decisions of the district courts of the

United States,” 2 28 U.S.C. § 1291 (emphasis added). It is undisputed that the district

court’s order in this case--denying Defendants’ motion for summary judgment on the

basis of the asserted immunities--is interlocutory.

       Consequently, we have jurisdiction only if we determine that the order satisfies the

collateral order doctrine, which provides that “a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of law” is immediately

appealable. Iko, 535 F.3d at 234 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).

If, on the other hand, summary judgment was denied “solely because there is a genuine

issue of material fact, that claim is not immediately appealable and we lack jurisdiction to

consider it.” Id. at 235.

       As a threshold requirement, and before jurisdiction can be invoked under the

collateral order doctrine, an appealable order must definitively resolve the question in

dispute. Al Shimari, 679 F.3d at 220 (citing Will v. Hallock, 546 U.S. 345, 349 (2006)).

A question in dispute is not so resolved where “a district court ‘ma[kes] clear that its

decision [is] a tentative one, . . . and that it might well change its mind’ after further

proceedings.”    Id. (alterations in original) (citation omitted).     In Al Shimari, we


       2
        28 U.S.C. § 1292 sets forth limited categories of interlocutory orders that are
appealable, but Defendants have not argued that any of these exceptions are at issue here.


                                             7
determined that we lacked jurisdiction over decisions denying defendants immunity. In

so doing, we pointed to the absence of a “vast pretrial record” coupled with the fact that

the issues were “factually entrenched and far less amenable to meaningful analysis by

resort merely to the plaintiffs’ pleadings.”       Id. at 221 (internal citation omitted).

Consequently, we concluded that “these appeals encompass fact-based issues of law, with

the need for additional development of the record,” and dismissed for lack of jurisdiction.

Id. at 221, 224.

                                              B.

       We accept as given that immunity is absolute where it applies. Antoine v. Byers &

Anderson, Inc., 508 U.S. 429, 432 (1993). The narrow question here is whether, based on

the limited record before it, the district court’s order is properly before us on appeal.

       We conclude that we lack jurisdiction because, as in Al Shimari, the district

court’s order did not conclusively determine the disputed question. Based on the limited

record before it, the district court found that there were genuine issues of material fact

outstanding as to whether the Defendants are entitled to the asserted immunities, and

subsequently ordered that the matter proceed to discovery. In so doing, the court cited Al

Shimari for the proposition that it “is entitled to have before it a proper record . . . to

accurately assess any claim, including one of immunity.” Brown, 2018 WL 1556189 at

*15 (quoting Al Shimari, 679 F.3d at 220). Such an order from a district court indicating

that its decision is tentative and that “it might well change its mind after further

proceedings,” is not appealable. Al Shimari, 679 F.3d at 220 (quoting Jamison v. Wiley,

14 F.3d 222, 230 (4th Cir. 1994)).

                                              8
      Contrary to Defendants’ contention, whether the asserted immunities apply in this

case is not a purely legal question. Instead, the district court correctly determined that

whether Defendants are immune from suit is a fact-intensive inquiry that will turn on the

record as it develops at least through discovery. Here, whether the Defendants are

entitled to judicial or quasi-judicial immunity depends upon the scope of conduct carried

out by the Defendants in their administrative capacities and whether such conduct

included the oversight and enforcement of unwritten policies. Similarly, the applicability

of legislative immunity is also fact-dependent, and will require the court to determine,

inter alia, whether the alleged policies “bear the outward marks of public

decisionmaking.” E.E.O.C. v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 184 (4th

Cir. 2011) (citation omitted). Such fact-based issues of law require “development of the

record,” a matter “more within a district court’s ken.” Al Shimari, 679 F.3d at 221

(quoting Iqbal, 556 U.S. at 674).

      With respect to their arguments regarding judicial and quasi-judicial immunity

specifically, Defendants attempt to distinguish our holding in Al Shimari by framing the

immunity inquiry here as purely legal--namely, whether the arrests and incarcerations

ordered by Defendants were judicial or quasi-judicial acts.       This misconstrues the

complaint.   Plaintiffs are not suing Defendants with respect to individual judicial

determinations, e.g., denials of bond or incarceration orders. In fact, as both parties

acknowledge, Plaintiffs declined to sue the individual judges who sentenced them. This

case is therefore distinguishable from our decision in Nero v. Mosby, 890 F.3d 106, 114

(4th Cir. 2018), where we held that the state’s attorney was entitled to immunity

                                            9
regarding her decision to prosecute certain police officers following the death of an

individual who suffered fatal injuries while in their custody.

       Instead, Plaintiffs allege that Defendants, acting in their administrative capacities,

oversaw and enforced policies and practices that violated Plaintiffs’ constitutional rights.

Specifically, they allege that by order of the Supreme Court of South Carolina, the Chief

Justice delegated significant administrative authority to Defendants Reinhart and Adams

as Chief Judge and Associate Chief Judge for Administrative Purposes of the Lexington

County Summary Courts, including the responsibility to establish and oversee county-

wide procedures to ensure the collection of court-generated revenues, and to administer

the County’s Bond Court. Exercising their administrative authority to control magistrate

court dockets, schedules, and hours of operation, Defendants are alleged to have excluded

hearings to determine people’s ability to pay fees and fines.

       Similarly, Defendant Koon, as chief administrator of the Detention Center, had

administrative powers and responsibilities. Namely, he was responsible for providing

direction and overall management for the center’s day-to-day operations, which included

overseeing the deputies in the warrant and civil process division who track and serve

warrants.   In this capacity, Defendant Koon is alleged to have exercised these

administrative powers to enforce a standard operating procedure of automatically

arresting indigent people on bench warrants and incarcerating them in the Detention

Center unless they can pay the full amount of court fines and fees owed before booking.

As the Supreme Court has held, “[a]dministrative decisions, even though they may be

essential to the very functioning of the courts, have not similarly been regarded as

                                             10
judicial acts” entitled to absolute judicial immunity. Forrester v. White, 484 U.S. 219,

228 (1988).

       Therefore, while it is true that Defendants Reinhart and Adams played a role in

effectuating   the   alleged   policies   through    judicial   actions--e.g.,   ordering   the

unconstitutional arrests and incarceration of indigent people for failure to pay fines and

fees--those specific acts are not the ones that Plaintiffs challenge as unconstitutional. The

same reasoning applies to Defendant Koon, whom the Plaintiffs sue in his capacity as an

administrator of the Detention Center, and not as the deputy responsible for enforcing

specific warrants. To find otherwise would misconstrue the Plaintiffs’ theory of their

case and run counter to the Court’s caution that “§ 1291 requires [the court] of appeals to

view [Defendants’] claims of a ‘right not to be tried’ with skepticism, if not a jaundiced

eye.” Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994).

       At the same time, we emphasize our recognition of the importance of immunity

from suit. And because we lack jurisdiction over the appeal, this opinion does not

address Defendants’ arguments on the merits as to the asserted immunities, nor does it

foreclose the possibility that Defendants may be successful in so arguing following

discovery on this issue.

       We therefore conclude that the district court’s order did not conclusively resolve

the disputed question, and the court’s order fails to meet the threshold requirement of the

collateral order doctrine. The appeal is therefore

                                                                                 DISMISSED.



                                             11
WILKINSON, Circuit Judge, concurring:

       I concur in the majority opinion because the majority has made it clear, and the

district court likewise made it clear, that its opinion was only tentative and not

necessarily a forecast of what its ultimate ruling on summary judgment might be. See

Maj. Op. at 11 (“[T]his opinion does not address Defendants’ arguments on the merits as

to the asserted immunities, nor does it foreclose the possibility that Defendants may be

successful in so arguing following discovery on this issue.”).

       Specifically, it is not clear to me that Al Shimari v. CACI International, Inc., 679

F.3d 205 (4th Cir. 2012) (en banc), the case on which plaintiffs chiefly rely, is dispositive

in the different setting of this case. Al Shimari dealt with private contractor immunity.

This case deals with the very different defense of judicial immunity. Different values are

at stake. “[A] judicial officer, in exercising the authority vested in him, [should] be free to

act upon his own convictions, without apprehension of personal consequences to

himself.” Stump v. Sparkman, 435 U.S. 349, 355 (1978) (quoting Bradley v. Fisher, 80

U.S. (13 Wall.) 335, 347 (1872)). We should hesitate to transplant decisions in the

context of private contractor immunity to claims of judicial immunity. If we allow actions

against judicial officers to become progressively burdensome, we risk “destroy[ing] that

independence without which no judiciary can be either respectable or useful.” Bradley,

80 U.S. (13 Wall.) at 347.

       Secondly, I am not convinced that the distinction between what is an

administrative action on the one hand and a judicial action on the other rests solely on the

matter of whether the challenged action is a “policy.” A policy, written or unwritten, can
bear so directly on the judicial function and be so intertwined with judicial duties that

absolute judicial immunity will attach. While internal personnel actions are a classic

example of an administrative proceeding, see Forrester v. White, 484 U.S. 219 (1988),

policies affecting outside parties in court proceedings are much more likely to be judicial.

They are not, after all, “acts that simply happen to have been done by judges.” Id. at 227.

Further factual development in this case may shed light on how the alleged policies here,

if they existed at all, can be characterized. While the district court is no doubt aware that

overly burdensome discovery can negate the very reason for an immunity, see Mitchell v.

Forsyth, 472 U.S. 511, 525-27 (1985), I believe the trial judge is entitled to a fuller

record at this stage.

       I thus concur in the dismissal of the appeal.




                                             13
