      Case: 14-40579          Document: 00513119453        Page: 1   Date Filed: 07/17/2015




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

                                                                                    FILED
                                                                                  July 17, 2015
                                            No. 14-40579
                                                                                 Lyle W. Cayce
                                                                                      Clerk
EDNA WEBB, Individually and as heir at law; KEVIN WEBB, Individually
and as the representative of the Estate of Robert Allen Webb; CASEY
AKINS, Individually and as heir at law; ESTATE OF ROBERT ALLEN
WEBB; CHRISTIAN CARSON,

                 Plaintiffs - Appellees

v.

BRAD LIVINGSTON; WILLIAM STEPHENS; WARDEN RICK THALER,

                 Defendants - Appellants

---------------------------------------------------
    Cons. w/No. 14-40586

EDNA WEBB, Individually and as heir at law; KEVIN WEBB, Individually
and as the representative of the Estate of Robert Allen Webb; CASEY
AKINS, Individually and as heir at law; ESTATE OF ROBERT ALLEN
WEBB; CHRISTIAN CARSON,

                 Plaintiffs
v.

BRAD LIVINGSTON; WILLIAM STEPHENS; WARDEN RICK THALER,

                  Defendants
------------------------------------------------------

GWEN TOGONIDZE, as Next Friend of J.T., a Minor; J. T., a Minor,

                Plaintiffs - Appellees


v.
      Case: 14-40579          Document: 00513119453       Page: 2   Date Filed: 07/17/2015



                              No. 14-40579; 14-40586; 14-40756


BRAD LIVINGSTON; WILLIAM STEPHENS; WARDEN RICK THALER,

                Defendants - Appellants

---------------------------------------------------
        Cons. w/ No. 14-40756

ASHLEY ADAMS, Individually and as the representative of the Estate of
Rodney Gerald Adams; WANDA ADAMS, Individually; MARY LOU JAMES,
Individually; CARLETTE HUNTER JAMES, Individually and as the
representative of the Estate of Kenneth Wayne James; KRYSTAL JAMES,
Individually and as heir-in-law to the Estate of Kenneth Wayne James;
KRISTY JAMES, Individually and as heir-in-law to the Estate of Kenneth
Wayne James; KENDRICK JAMES, Individually and as heir-in-law to the
Estate of Kenneth Wayne James; ARLETTE JAMES, Individually and as
heir-in-law to the Estate of Kenneth Wayne James; JONATHAN JAMES,
Individually and as heir-in-law to the Estate of Kenneth Wayne James;
KENNETH EVANS, Individually and as heir-in-law to the Estate of Kenneth
Wayne James; CADE HUDSON, Individually and as the representative of
the Estate of Douglas Hudson; ESTATE OF RODNEY GERALD ADAMS;
ESTATE OF KENNETH WAYNE JAMES; ESTATE OF DOUGLAS
HUDSON,

                Plaintiffs - Appellees
v.

RICK THALER; WILLIAM STEPHENS; BRAD LIVINGSTON, Individually
and in his official capacity,

                Defendants - Appellants


                     Appeals from the United States District Court
                           for the Eastern District of Texas
                                USDC No. 6:13-CV-711




                                                      2
     Case: 14-40579          Document: 00513119453          Page: 3     Date Filed: 07/17/2015



                             No. 14-40579; 14-40586; 14-40756
Before STEWART, Chief Judge, HAYNES, Circuit Judge, and BROWN,
District Judge.*
PER CURIAM:**
       This consolidated appeal 1 arises from the heat-related deaths of five
prisoners who died while housed in facilities operated by the Texas
Department of Criminal Justice (TDCJ). Appellants Brad Livingston, William
Stephens, and Rick Thaler, three top TDCJ executives, challenge the district
court’s decision to defer and carry their motions to dismiss on the basis of
qualified immunity.            The district court, agreeing in large part with the
magistrate judge’s report and recommendation, concluded that significant,
unanswered questions made it unable to rule on Appellants’ immunity defense.
Therefore, the district court postponed ruling on Appellants’ motions to dismiss
until the parties completed court-ordered discovery limited to the issue of
qualified immunity. Concluding that we lack jurisdiction over this appeal, we
DISMISS.
                                                 I.
       During the summers of 2011 and 2012, Robert Allen Webb, Alexander
Togonidze, Rodney Adams, Kenneth Wayne James, and Douglas Hudson
(collectively, decedents), five prisoners incarcerated in several TDCJ prison
facilities, died from heat-related injuries.                 Following their deaths, the
decedents’ family members (Appellees) brought three separate lawsuits


       *    District Judge of the Eastern District of Louisiana, sitting by designation.
       **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.
       1 On Appellants’ motion, this court consolidated Edna Webb, et al. v. Brad Livingston,
et al. No. 14-40579; Gwen Togonidze, et al. v. Brad Livingston, et al. No. 14-40586; and Ashley
Adams, et al. v. Brad Livingston, et al., No. 14-40756 for appeal, with Webb as the lead case.
                                                      3
    Case: 14-40579      Document: 00513119453        Page: 4    Date Filed: 07/17/2015



                        No. 14-40579; 14-40586; 14-40756
asserting causes of action against several parties, including Brad Livingston,
Rick Thaler, and William Stephens (Appellants) in their individual capacities.
Relevant to the present appeal, Appellees claimed, under 42 U.S.C. § 1983,
that Appellants acted with deliberate indifference to the decedents’ health and
safety needs in violation of the Eighth and Fourteenth Amendments. 2
      The complaints alleged that during the summer months, the prison
facilities where the decedents were housed experienced outside temperatures
above 100 degrees Fahrenheit for weeks at a time. These prisons did not have
air conditioning in the inmate living areas, which routinely caused the indoor
apparent, or “feels like,” temperature to exceed 100 degrees.                 At such
temperatures, heatstroke becomes “imminent” even for those in good health.
However, the decedents were not in good health. Each decedent had a heat-
sensitive disability that made them particularly vulnerable to heatstroke at
high temperatures. Specifically, they suffered from hypertension, diabetes,
depression or a combination thereof, which required them to take medications
that interfered with their bodies’ ability to regulate temperature. Appellees
claimed that Appellants were aware of these alleged facts but failed to
promulgate adequate policies to address the extreme heat endured by
prisoners in the prison living areas. Appellees contended that Appellants’
actions and inactions amounted to deliberate indifference, which proximately
caused decedents’ deaths.
      Appellants filed motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) in each of the three lawsuits, asserting qualified immunity.



      2  Relatives of Douglas Hudson and Kenneth James also asserted a denial of medical
care claim under the Eighth and Fourteenth Amendments, and all Appellees asserted claims
under the Americans with Disabilities Act, Rehabilitation Act, and Texas state law for
negligence. Those claims are not part of this appeal.
                                              4
     Case: 14-40579       Document: 00513119453         Page: 5    Date Filed: 07/17/2015



                          No. 14-40579; 14-40586; 14-40756
Addressing the motion filed in the Webb case, the magistrate judge concluded
that discovery limited to Appellants’ entitlement to qualified immunity was
necessary to rule on the pending motion to dismiss.                     Accordingly, the
magistrate judge recommended that Appellants’ motion to dismiss be denied
and that limited discovery be permitted on the issue of qualified immunity.
       On de novo review, the district court agreed in substance with the
magistrate’s recommendation but disagreed in part with the recommended
disposition. Instead of denying Appellants’ motion to dismiss, the district
court, relying on Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012), deferred and
carried the motion to be revisited after the completion of discovery limited to
Appellants’ immunity defense. Pursuant to Backe, the district court reviewed
the Webb complaint and concluded that, if true, the complaint’s allegations
were sufficient to overcome the Appellants’ immunity defense. The district
court further found that there were significant unanswered questions, which
made it unable to rule on the immunity defense without clarification of
pertinent facts and therefore ordered limited discovery. 3 Appellants timely
appealed.
                                             II.
       Though neither party addresses the issue of this court’s jurisdiction to
review the district court’s order, “[w]e must, as always, determine our own
jurisdiction before proceeding further.” Backe, 691 F.3d at 647. Generally, this
court lacks jurisdiction to review an order compelling limited discovery under



       3 Shortly after it issued its order in Webb, the district court, on the parties’ joint
recommendation, consolidated Webb, Togonidze, and Adams, for the purpose of discovery and
other pre-trial matters. Subsequently, the district court issued its order in Webb, deferring
and carrying Appellants’ motions to dismiss and permitting discovery limited to qualified
immunity, in the other two cases. All three complaints, signed by the same attorney, contain
substantially similar factual allegations.
                                                   5
     Case: 14-40579       Document: 00513119453          Page: 6     Date Filed: 07/17/2015



                           No. 14-40579; 14-40586; 14-40756
the final judgment rule. Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir.
1987) (citing 28 U.S.C. § 1291). “However, we have repeatedly held that a
district court’s order that declines or refuses to rule on a motion to dismiss
based on a government officer’s defense of qualified immunity is an
immediately appealable order.” Zapata v. Melson, 750 F.3d 481, 484 (5th Cir.
2014) (citations omitted).         The court has reasoned that such an order is
effectively a denial of qualified immunity, a disposition that is immediately
appealable as a collateral final order. See Helton v. Clements, 787 F.2d 1016,
1017 (5th Cir. 1986) (per curiam).
       Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” 4
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This immunity extends beyond
a defense to liability to protect government officials from the burdens of
litigation, including “pretrial discovery, which is costly, time-consuming, and
intrusive.” Backe, 691 F.3d at 648 (citation omitted). Nevertheless, “qualified
immunity does not shield government officials from all discovery but only from
discovery which is either avoidable or overly broad.” Lion Boulos, 834 F.2d at
507. Accordingly, this court has established a procedure by which a district
court may defer ruling on the issue of qualified immunity if further factual




       4 To determine whether an official is entitled to qualified immunity, the court must
conduct a two-step inquiry. First, the court must decide “whether the facts that a plaintiff
has alleged . . . make out a violation of a consitutitonal right.” Pearson v. Callahan, 555 U.S.
223, 232 (2009) (citation omitted). Second, if the plaintiff has alleged a constitutional
violation, the court must determine whether the right at issue was clearly established at the
time of the alleged misconduct. Id.

                                                  6
    Case: 14-40579    Document: 00513119453     Page: 7   Date Filed: 07/17/2015



                      No. 14-40579; 14-40586; 14-40756
development is required to determine the availability of that defense. See
Zapata, 750 F.3d at 485; Backe, 691 F.3d at 648.
      As a threshold matter, the district court must find “that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense of qualified
immunity.” Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995).
“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.” Backe, 691 F.3d at 648. If the
complaint alleges facts sufficient to overcome the defense of qualified
immunity, and the district court is “unable to rule on the immunity defense
without further clarification of the facts,” then it may allow discovery
“narrowly tailored to uncover only those facts needed to rule on the immunity
claim.” Id. (quoting Lion Boulos, 834 F.2d at 507–08) (internal quotation
marks omitted).
      When a district court complies with this procedure, this court lacks
jurisdiction to review the interlocutory order. Id. However, the court does
have jurisdiction if the district court: (1) fails to find that the complaint
overcomes the defendant’s qualified immunity defense; (2) refuses to rule on
the qualified immunity defense; or (3) issues a discovery order that is not
narrowly tailored to uncover facts relevant only to the issue of qualified
immunity. See id. (citations omitted).
      Our jurisdiction over this appeal hinges on the first and third inquiries,
that is, whether the district court properly found that the complaint overcame
Appellants’ qualified immunity defense and whether the district court’s




                                          7
     Case: 14-40579       Document: 00513119453          Page: 8     Date Filed: 07/17/2015



                           No. 14-40579; 14-40586; 14-40756
discovery order was narrowly tailored to uncover facts relevant to the defense. 5
We review a district court’s decision to defer ruling on a motion to dismiss and
its discovery order for abuse of discretion. Id. at 649.
                                              A.
       We must first determine whether the district court correctly concluded
that Appellees’ complaint asserted facts, which, if true, would overcome
Appellants’ qualified immunity defense. “To overcome the immunity defense,
the complaint must allege facts that, if proven, would demonstrate that
[Appellants] violated clearly established statutory or constitutional rights.”
Wicks, 41 F.3d at 995. Such facts must be particular. See id. “A pleading that
offers labels and conclusions or formulaic recitation of the elements of a cause
of action will not do.” Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635,
643 (5th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))
(internal quotation marks omitted).
       Appellees claim that Appellants’ actions and inactions in the face of
extremely hot temperatures violated the decedents’ Eighth Amendment right
to be housed in humane conditions of confinement. “The Constitution does not
mandate comfortable prisons . . . but neither does it permit inhumane ones.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and



       5  The second scenario, in which the district court refuses to rule on the qualified
immunity defense, is governed by Helton, 787 F.2d at 1017. There, this court held that a
district court’s order declining or refusing to rule on a motion to dismiss based on the defense
of qualified immunity is an immediately appealable order. Id. Helton, however, announces
a narrow holding that this court has refused to extend. See Meza v. Livingston, 537 F.3d 364,
367 (5th Cir. 2008). Helton’s narrow holding does not reach the facts of this case as there,
the district court refused to rule on the defendant’s immunity defense until trial, thus
depriving defendant of his right not to stand trial. 787 F.2d at 1017. Here, by contrast, the
district court deferred ruling on Appellants’ immunity defense until the court could rule on
the motion to dismiss or motion for summary judgment after the completion of limited
discovery.
                                                   8
    Case: 14-40579     Document: 00513119453      Page: 9    Date Filed: 07/17/2015



                       No. 14-40579; 14-40586; 14-40756
citation omitted). Indeed, the Eighth Amendment requires that prison officials
“provide humane conditions of confinement; they must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must take
reasonable measure to ensure the safety of the inmates.” Gates v. Cook, 376
F.3d 323, 332 (5th Cir. 2004) (citing Farmer, 511 U.S. at 832).
      A plaintiff must meet two requirements to establish an Eighth
Amendment violation. First, “the deprivation alleged must be, objectively,
sufficiently serious.” Farmer, 511 U.S. at 834 (internal quotation marks and
citations omitted). Conditions of confinement that deprive an inmate of “the
minimal civilized measure of life’s necessities . . . are sufficiently grave to form
the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294,
298 (1991) (internal quotation marks and citation omitted).           Second, the
plaintiff must show that the prison official acted with deliberate indifference
to that known risk. Farmer, 511 U.S. at 834. A prison official acts with
deliberate indifference if “he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures
to abate it.” Id. at 847. “Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that
the risk was obvious.” Gates, 376 F.3d at 333 (citation omitted).
      Appellees’ allegations, if true, satisfy both requirements. First,
Appellees’ allegations demonstrate that the decedents’ exposure to extreme
heat posed an objective and substantial risk of serious harm.            It is well
established in this Circuit that exposure to extremely hot temperatures
presents a substantial risk of serious harm to inmate safety. See Ball v.
LeBlanc, ---F.3d---, 2015 WL 4114473, at *4 (5th Cir. July 8, 2015) (affirming
                                            9
   Case: 14-40579     Document: 00513119453     Page: 10    Date Filed: 07/17/2015



                       No. 14-40579; 14-40586; 14-40756
the district court’s finding that evidence of inmates’ heightened vulnerability
to high temperatures coupled with high summer temperatures in inmate
housing posed a substantial risk of serious harm); Gates, 376 F.3d at 340
(determining that exposure to consistently hot temperatures constituted a
substantial risk of serious harm to inmates); Smith v. Sullivan, 553 F.2d 373,
381 (5th Cir. 1977) (stating that “[i]f the proof shows the occurrence of extremes
of temperature that are likely to be injurious to inmates’ health[,] relief should
be granted”).
      Second, Appellees’ complaint sufficiently alleges that Appellants knew
of, but were deliberately indifferent to, this known risk of harm. The complaint
alleges that Appellants knew: the prison locations where the decedents were
housed were experiencing a severe heatwave with temperatures in the
hundreds; the prisons’ indoor temperatures routinely exceeded 100 degrees;
the inmate living areas were not air conditioned or otherwise cooled to bring
down these extreme temperatures; and such extreme temperatures made
heatstroke imminent, especially for those with heat-related vulnerabilities like
decedents. The complaint also alleges that Appellants discussed the risk posed
by inmate exposure to extreme heat, routinely reviewed documents reporting
heat-related injuries suffered by prisoners and staff, sent out an informal email
warning of the risk, and provided (inadequate) training to correctional officers
highlighting the warning signs of heat-related illness. Despite this knowledge,
the complaint alleges that Appellants inadequately responded to the risk or
took no action to protect heat-sensitive inmates, like the decedents, from the
extreme heat. These allegations, if true, can demonstrate that Appellants
acted with deliberate indifference to a known risk. See Ball, 2015 WL 4114473
at *6 (concluding that officials’ failure to act despite their awareness of
extremely high indoor temperatures, review of records listing those prisoners
                                          10
    Case: 14-40579        Document: 00513119453          Page: 11      Date Filed: 07/17/2015



                           No. 14-40579; 14-40586; 14-40756
that were susceptible to heat, and articulated concern about the high
temperatures was sufficient to show deliberate indifference). Moreover, the
open and obvious nature of the alleged conditions further supports the
reasonable inference that Appellants were deliberately indifferent. 6 See Gates,
376 F.3d at 340 (affirming trial court’s finding of a prison system’s deliberate
indifference based on the open and obvious nature of extreme heat in prison
facilities).
       Having determined that Appellees’ complaint sufficiently alleges facts,
taken as true, to state a violation of decedents’ Eighth Amendment right, we
must next determine whether that right was clearly established. We conclude
that it was. To be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In
other words, the court must determine “whether the state of the law in [2011]
gave [Appellants] fair warning that their alleged treatment of [the decedents]
was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). A prisoner’s
right to be free from extreme temperatures was clearly established in 2011. 7



       6  Contrary to Appellants’ suggestion, Appellees’ allegations that Appellants failed to
promulgate adequate policies despite knowing the effect of extreme heat on heat-sensitive
prisoners like the decedents, if true, could support the imposition of supervisory liability. See
Sanders v. Foti, 281 F.3d 1279 (5th Cir. 2001) (per curiam) (unpublished) (holding that
allegations that a state prison system’s executive failed to establish a policy to prevent
constitutional violations, which led to plaintiff’s harm, were sufficient to establish
supervisory liability); Stitt v. Klevenhagen, 50 F.3d 1032 (5th Cir. 1995) (per curiam)
(unpublished) (concluding that supervisory liability could be established where complaint
alleged that the supervisor was aware of a constitutional violation, failed to correct it, and
the supervisor’s failure caused the plaintiff’s injury).
        7 Appellants acknowledged at oral argument that decedents had a clearly established

right to be free from extreme temperatures. Nevertheless, they maintained that this is too
broad a pronouncement of the governing law to have alerted them that their alleged
mistreatment of the decedents violated their constitutional rights. Relying on Gates v. Cook,
where this court upheld an injunction requiring Mississippi prison officials to provide fans,
                                                  11
    Case: 14-40579       Document: 00513119453          Page: 12     Date Filed: 07/17/2015



                          No. 14-40579; 14-40586; 14-40756
See Wilson, 501 U.S. at 304 (proposing that “a low cell temperature at night
combined with a failure to issue blankets” can violate the Eighth Amendment);
see also Gates, 376 F.3d at 339–40; Sullivan, 553 F.2d at 381.
       By containing facts, which, if true, demonstrate that Appellants violated
the decedents’ clearly established Eighth Amendment right to be free from
extreme heat, Appellees’ allegations are sufficient to overcome Appellants’
qualified immunity defense. See Wicks, 41 F.3d at 995. Because the district
court properly conducted this threshold inquiry, it was within its discretion to




additional access to ice water, and daily showers, 376 F.3d at 339–40, Appellants contended
that the clearly established law of this Circuit held that subjecting inmates to extreme
temperatures without remedial measures is unconstitutional. We disagree. Appellants have
pointed to no case law that so narrowly defines the boundaries of the clearly established law
within this context. Indeed, Valigura v. Mendoza, a case on which Appellants also relied,
broadly defined the contours of the inmate’s right, concluding that as of 2004, “it was clearly
established that [the inmate] had a right to be free from cruel and unusual punishment,”
which included the right not to be subject to extremely hot temperatures. 265 F. App’x 232,
236 (5th Cir. 2008) (per curiam). We further observed that “the contours of these rights were
sufficiently clear at the time of the alleged deprivation.” Id.
        Moreover, even assuming arguendo that Appellants have offered a correct statement
of the clearly established law, the mere presence of remedial measures would not end the
inquiry, as such measures must be adequate. Indeed, we have affirmed determinations that
prison officials violated the Eighth Amendment despite evidence that the officials
implemented the remedial measures approved in Gates, where such measures proved
inadequate to protect inmates from the extreme heat. See Ball v. LeBlanc, ---F.3d---, 2015
WL 4114473, at *4 (5th Cir. July 8, 2015); Blackmon v. Garza, 484 F. App’x 866, 871–72 (5th
Cir. 2012) (per curiam). Appellees allege that Appellants’ remedial measures were
inadequate to protect decedents from the extreme heat. These allegations, which we must
accept as true, can overcome Appellants’ immunity defense.
        Finally, our conclusion is not out of step with the Supreme Court’s recent decision in
Taylor v. Barkes, 135 S. Ct. 2042 (2015). There, the Court faulted the Third Circuit Court of
Appeals for holding that an inmate had a clearly established Eighth Amendment right to the
proper implementation of adequate suicide prevention protocols, when there was no decision
of the Supreme Court that “even discusses suicide screening or prevention protocols,” and the
Third Circuit’s own case law did not clearly recognize that such a right existed. Id. at 2044.
By contrast, Supreme Court case law strongly suggests, see Wilson, 501 U.S. at 304, and our
precedent establishes that an inmate has a constitutional right to be free from extreme
temperatures. See Gates, 376 F.3d at 339–40; Sullivan, 553 F.2d at 381.
                                                 12
    Case: 14-40579    Document: 00513119453       Page: 13   Date Filed: 07/17/2015



                       No. 14-40579; 14-40586; 14-40756
determine whether limited discovery was necessary to rule on Appellants’
entitlement to the immunity defense. See id.
                                        B.
       We next address whether the district court’s discovery order was
“narrowly tailored to uncover only those facts needed to rule on the immunity
claim.” Backe, 691 F.3d at 648 (internal quotation marks and citation omitted).
After concluding that the complaint pleads facts sufficient to overcome an
asserted qualified immunity defense, a district court may permit limited
discovery relevant to the defense. See id.; see also Schultea v. Wood, 47 F.3d
1427, 1434 (5th Cir. 1995) (en banc) (allowing a district court to order limited
discovery if “it finds that plaintiff has supported his claim with sufficient
precision and factual specificity to raise genuine issues as to the illegality of
defendant’s conduct at the time of the alleged acts”).
       As previously mentioned, an order compelling limited discovery is not
generally appealable under the final judgment rule. Lion Boulos, 834 F.2d at
506.   However, “in qualified immunity cases such as this one, immediate
appeal is available for discovery orders which are either avoidable or overly
broad.” Gaines v. Davis, 928 F.2d 705, 707 (5th Cir. 1991). A district court’s
discovery order is neither avoidable nor overly broad, and therefore not
immediately appealable, when: (1) the defendant’s entitlement to immunity
turns at least partially on a factual question; (2) the district court is unable to
rule on the immunity defense without clarification of these facts; and (3) the
discovery order is narrowly tailored to uncover only the facts necessary to rule
on the immunity defense. Lion Boulos, 834 F.2d at 507–508.
       Applying the first factor, the district court properly concluded that
Appellants’ entitlement to qualified immunity turned at least partially on an
issue of fact.   To determine whether Appellants are entitled to qualified
                                             13
   Case: 14-40579     Document: 00513119453     Page: 14   Date Filed: 07/17/2015



                       No. 14-40579; 14-40586; 14-40756
immunity, the district court must evaluate whether Appellants acted with
deliberate indifference by subjectively disregarding a known risk, Farmer, 511
U.S. at 834, and whether the Appellants actions were objectively reasonable
despite the alleged deliberate indifference. See Porter v. Epps, 659 F.3d 440,
446 (5th Cir. 2011). Appellants’ subjective knowledge is a question of fact,
Gates, 376 F.3d at 333, which this court has recognized is “peculiarly within
the knowledge” and possession of Appellants. See Morgan v. Hubert, 335 F.
App’x 466, 472 (5th Cir. 2009) (quoting Schultea, 47 F.3d at 1432). Therefore,
the district court did not err in concluding that Appellants’ immunity defense,
which required an inquiry into Appellants’ alleged deliberate indifference,
turned in part on an issue of fact.
      Moving to the second factor, the district court was within its discretion
in concluding that it was unable to rule on the immunity defense without
further clarification of the facts. To rule on the immunity defense, the district
court must assess “whether the official’s conduct would have been objectively
reasonable at the time of the incident.” Wilkerson v. Goodwin, 774 F.3d 845,
851 (5th Cir. 2014). This determination is complicated when, as here, the
deliberate indifference standard must be reconciled with the second prong’s
objective reasonableness standard. As this court has explained, “[o]bviously,
the analysis for objective reasonableness is different from that for deliberate
indifference (the subjective test for addressing the merits).      Otherwise, a
successful claim of qualified immunity in this context would require
defendants to demonstrate that they prevail on the merits, thus rendering
qualified immunity an empty doctrine.” Hare v. City of Corinth, Miss., 135
F.3d 320, 328 (5th Cir. 1998). “Accordingly, . . . the subjective deliberate
indifference standard serves only to demonstrate the clearly established law in
effect at the time of the incident.” Id. In light of these complexities, we have
                                          14
    Case: 14-40579       Document: 00513119453          Page: 15   Date Filed: 07/17/2015



                         No. 14-40579; 14-40586; 14-40756
observed that “[a]dditional facts . . . are particularly important when
evaluating the second prong of the qualified immunity test.” Morgan, 335 F.
App’x at 473. Therefore, the district court did not err in concluding that further
factual clarification was necessary to resolve the immunity issue. See id.
       Finally, under the third factor, the limited discovery is narrowly tailored.
The ordered discovery seeks to reveal what Appellants knew, when they knew
it, and what actions (or inactions) they took in light of this knowledge.
Moreover, the district court was careful to prevent discovery that pertained to
the merits of Appellees’ underlying claims, and excluded discovery relevant to
other heat-related litigation. Consequently, the district court’s discovery order
is narrowly tailored to uncover only the facts necessary to rule on the immunity
defense.
       Because the immunity defense turns on an issue of fact, the district court
concluded that it could not determine Appellants’ entitlement to the defense
without discovery, and discovery was limited to the issue of qualified
immunity, the district court did not abuse its discretion. Backe, 691 F.3d at
649. Accordingly, this court lacks jurisdiction to review the district court’s
discovery order. Lions Boulos, 834 F.2d at 508.
                                            III.
       In sum, the district court’s proper adherence to Circuit procedure in
deferring its ruling on Appellants’ motions to dismiss and ordering discovery
narrowly tailored to the issue of qualified immunity deprives this court of
jurisdiction over this appeal.            Accordingly, we DISMISS for lack of
jurisdiction. 8



       8 Both Appellants and Appellees filed an opposed motion for judicial notice. In light
of the disposition of this appeal, all pending motions are DENIED.
                                                   15
