     Case: 11-40460   Document: 00511959205   Page: 1   Date Filed: 08/16/2012




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

                                                                    FILED
                                                                 August 16, 2012

                                 No. 11-40460                    Lyle W. Cayce
                                                                      Clerk

BRANDON A. BACKE; JOSEPH P. BELLUOMINI;
SHANNON BELLUOMINI; CHRIS CORNWELL;
MATTHEW L. GOODSON; MICHAEL R. MCMILLAN;
DANIEL COLE O’BALLE; GILBERT E. O’BALLE, JR.;
JUSTIN PACKARD; CALVIN SILVA;
AARON TREVINO; CHARLES YOUNG,

                                           Plaintiffs - Appellees

v.

STEVEN LEBLANC; Chief CHARLES B. WILEY, JR.,

                                           Defendants - Appellants


                  Appeal from the United States District Court
                       for the Southern District of Texas


Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Chief Judge:
        Appellants Steven LeBlanc and Charles Wiley, former City Manager and
former Chief of Police for the City of Galveston, respectively, seek review of a
district court order permitting general discovery without resolving their
assertions of qualified immunity. Appellants asserted immunity in a motion to
dismiss in response to Appellees’ myriad Section 1983 claims, and the district
court concluded it was “premature” to address the qualified immunity defense
before general discovery. Unfortunately, the district court abused its discretion
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in withholding its ruling pending general discovery. We therefore VACATE the
district court’s order and REMAND.
                                 BACKGROUND
      We need not elaborate on the allegations underlying this case in detail
given its posture on appeal. Appellees claim that a City of Galveston police
officer detained Cole O’Balle at a bar at the San Luis Resort on Galveston Island
in the early hours between October 4-5, 2008. O’Balle’s guests, celebrating at
the bar following a wedding, pursued the officer, who became defensive and
requested backup assistance. A large (but indeterminate) number of officers
responded and a fracas broke out, resulting, according to Appellees, in police use
of excessive force against O’Balle, his guests, and bystanders. According to
Appellees, Chief Wiley “arrived at the scene, and observed the situation and
allowed it to continue.” This is the only factual allegation about Chief Wiley
regarding the incident in the complaint; there are none about City Manager
LeBlanc.
      Appellees filed this Section 1983 suit against LeBlanc, Wiley, and over a
dozen individual officers based on both the fracas itself and what Appellees
describe as a “long history of acts of police brutality [and] excessive use of force,”
“constitut[ing] a policy and/or custom of the city and its law enforcement
departments.” Relevant to this appeal, Appellees alleged this history amounted
to a City policy or custom, that LeBlanc and Wiley “authorized” or “ratified” this
de facto policy, and that LeBlanc and Wiley were individually liable for failing
to train the responding officers, especially on the appropriate use of force.
      Appellants moved to dismiss based on qualified immunity under Federal
Rule of Civil Procedure 12(b)(6), arguing that Appellees failed to plead
specifically a City policy causing a deprivation of constitutional rights, facts
plausibly demonstrating their deliberate indifference to Appellees’ constitutional
rights, and facts plausibly demonstrating that Appellants ratified or authorized

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                                      No. 11-40460

any unconstitutional conduct. The district court refused to rule on Appellants’
threshold qualified immunity defense, concluding that “[a]lthough qualified
immunity might become a relevant defense to liability once the facts are known,
it is too early to make that determination now.” It denied Appellants’ motion to
dismiss pending general discovery.1
       LeBlanc and Wiley appeal, contending that the district court abused its
discretion by failing to rule on their immunity claim before permitting general
discovery. Additionally, LeBlanc and Wiley argue that Appellees’ constitutional
claims fail for lack of plausibility in the first place, or for failure to articulate
facts which plausibly overcome their qualified immunity defenses.
                                     DISCUSSION
       The parties disagree as a threshold matter about whether this court has
jurisdiction to review the district court’s order. We must, as always, determine
our own jurisdiction before proceeding further. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94-95, 118 S. Ct. 1003, 1012-1013 (1998).
       Appellate courts have jurisdiction over virtually all “final decisions” of the
district court, 28 U.S.C. § 1291, a class that             ordinarily does not include
discovery orders. Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987).
Section 1291 does, however, include those interlocutory orders that
“[1] conclusively determine the disputed question, [2] resolve an important issue
completely separate from the merits of the action, and [3] [are] effectively
unreviewable on appeal from a final judgment.” Texas v. Caremark, Inc.,
584 F.3d 655, 657-58 (5th Cir. 2009).
       A district court’s denial of qualified immunity to public officials is exactly
such an order. As the Supreme Court has emphatically directed, “[q]ualified
immunity is an immunity from suit rather than a mere defense to liability.”

       1
        The individual police officers who were allegedly directly involved in the events did
not appeal the court’s order denying their motions to dismiss.

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Pearson v. Callahan, 555 U.S. 223, 237, 129 S. Ct. 808, 818 (2009) (internal
quotation marks omitted). Because immunity is “effectively lost if a case is
erroneously permitted to go to trial,” a denial of qualified immunity may be
immediately appealed. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S. Ct.
2806, 2815-16 (1985). This court has applied Mitchell to trial court discovery
orders that, through overbreadth, effectively deprive public officials of an
immunity from suit. Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994-95 (5th
Cir. 1995)
      One of the most salient benefits of qualified immunity is protection from
pretrial discovery, which is costly, time-consuming, and intrusive, Helton v.
Clements, 787 F.2d 1016, 1017 (5th Cir. 1986). Consequently, this court has
established a careful procedure under which a district court may defer its
qualified immunity ruling if further factual development is necessary to
ascertain the availability of that defense. As we explained in Wicks, supra, a
district court must first find “that the plaintiff’s pleadings assert facts which, if
true, would overcome the defense of qualified immunity.” Id.; see also Ashcroft
v. Iqbal, 556 U.S. 667, 678-79, 129 S. Ct. 1937, 1949-50 (2009) (directing that a
plaintiff must “state a claim for relief that is plausible on its face” — excluding
statements that are “no more than conclusions” which are “not entitled to the
assumption of truth”). Thus, a plaintiff seeking to overcome qualified immunity
must plead specific facts that both allow the court to draw the reasonable
inference that the defendant is liable for the harm he has alleged and that defeat
a qualified immunity defense with equal specificity. After the district court finds
a plaintiff has so pled, 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.” Lion Boulos, 834 F.2d at 507-08.



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      This court lacks jurisdiction to review interlocutory orders in qualified
immunity cases complying with these requirements. See, e.g., Edwards v. Cass
Cnty., Tex., 919 F.2d 273, 275-76 (5th Cir. 1990). But we may review the order
under the collateral order doctrine when a district court fails to find first that
the plaintiff’s complaint overcomes a defendant’s qualified immunity defense,
Wicks, 41 F.3d at 994-95; when the court refuses to rule on a qualified immunity
defense, Helton, 787 F.2d at 1017; or when the court’s discovery order exceeds
the requisite “narrowly tailored” scope, Lion Boulos, 834 F.2d at 507-08.
      For materially the same reasons, we both have jurisdiction to review and
must vacate the district court’s order here. The court stated that it was
“premature to address the defendant’s assertions of qualified immunity before
discovery has taken place,” but as the Supreme Court has noted, that is precisely
the point of qualified immunity: to protect public officials from expensive,
intrusive discovery until and unless the requisite showing overcoming immunity
is made. Even if we liberally interpret the district court’s order as making the
requisite finding that Appellees pled facts overcoming qualified immunity, the
district court was permitted to authorize only discovery narrowly tailored to rule
on Appellants’ immunity claims. An order that simultaneously withholds ruling
on a qualified immunity defense while failing to constrain discovery to develop
claimed immunity is by definition not narrowly tailored. The district court
doubly abused its discretion by (apparently) refusing to rule on LeBlanc’s and
Wiley’s motions to dismiss and by failing to limit discovery to facts necessary to
rule on their qualified immunity defense.
                                CONCLUSION
      For these reasons, this court has appellate jurisdiction over the district
court’s order whose effect denied these officials the benefits of orderly handling
of their qualified immunity defense. We must vacate and remand, and we



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                                No. 11-40460

instruct the court to follow the procedures outlined in Lion Boulos, Helton, and
Wicks.
                     VACATED and REMANDED with INSTRUCTIONS.




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