               Case: 17-13999       Date Filed: 10/02/2018      Page: 1 of 19


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-13999
                              ________________________

                          D.C. Docket No. 2:15-cv-02274-JEO



THE ESTATE OF MARQUETTE F. CUMMINGS JR.,

                                                                          Plaintiff-Appellee,
                                            versus

CARTER DAVENPORT,

                                                                      Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                              _______________________

                                     (October 2, 2018)

Before WILLIAM PRYOR, MARTIN, and BALDOCK, * Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

        This interlocutory appeal of the partial denial of Carter Davenport’s motion

to dismiss the amended complaint by the estate of Marquette F. Cummings Jr.

*
 Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
              Case: 17-13999     Date Filed: 10/02/2018   Page: 2 of 19


requires us to decide whether Davenport, a prison warden, satisfied his threshold

burden of establishing entitlement to qualified immunity. Cummings, a prisoner,

was stabbed by a fellow inmate, was transported to a hospital, and died the next

day. His estate filed a civil-rights complaint, see 42 U.S.C. § 1983, that Davenport

violated the Eighth and Fourteenth Amendments to the Constitution by illegally

interfering with Cummings’s end-of-life medical care with deliberate indifference

to his serious medical needs, see Estelle v. Gamble, 429 U.S. 97 (1976). Davenport

invoked qualified immunity, but the district court ruled that he failed to establish

that his alleged actions—which included the entry of a do-not-resuscitate order and

the decision to remove Cummings from artificial life support—fell within the

scope of his discretionary authority, his threshold burden for qualified immunity.

Because Alabama law establishes that Davenport’s discretionary authority did not

extend to the alleged actions, we affirm.

                                I. BACKGROUND

      We divide our discussion of the background in three parts. First, we describe

the facts about Cummings’s death. Second, we describe the factual allegations that

form the basis of the estate’s claim of deliberate indifference against Davenport.

Third, we relate the proceedings in the district court. Of course, for purposes of this

appeal from the partial denial of a motion to dismiss, “we accept as true the facts




                                            2
              Case: 17-13999     Date Filed: 10/02/2018   Page: 3 of 19


alleged in the complaint, drawing all reasonable inferences in [the] plaintiff’s

favor.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).

                               A. Cummings’s Death

      Cummings was an inmate at the St. Clair Correctional Facility in

Springville, Alabama. At about 7:40 a.m. on January 6, 2014, another inmate

stabbed Cummings in the eye with a weapon commonly known as a “shank.”

Several other inmates helped Cummings to the prison infirmary, and, at about 8:00

a.m., he was airlifted to the University of Alabama at Birmingham Hospital. The

University Hospital received him in the emergency room and transferred him to the

Intensive Care Unit. Later that day, a University Hospital spokeswoman said

Cummings was in “critical condition.”

      Angela Gaines, Cummings’s mother, learned of the attack on her son that

morning. She called the prison to “verify” that her son had been stabbed, but her

calls were unanswered. That afternoon, Warden Davenport called her back to tell

her that Cummings had indeed been stabbed and that he was being transported to a

hospital. When Gaines asked Davenport for the name of the hospital, he stated he

could not say but promised to call back with more information. Several hours later,

he told Gaines that Cummings was at the University Hospital.

      Gaines went to the University Hospital and asked to see her son, but the staff

told her she would have to wait at least 90 minutes. At some point, the hospital



                                          3
                Case: 17-13999      Date Filed: 10/02/2018   Page: 4 of 19


staff told Gaines that “Cummings had been stabbed in the eye and that, due to his

injuries, he was only operating with 10% of normal brain functioning.” But Gaines

believed that Cummings was responsive to her “verbal cues,” such as “blink if you

can hear me.”

      Cummings never left the University Hospital. On January 7, 2014,

Cummings was removed from life support, and he stopped breathing at 7:05 p.m.

that evening.

                          B. Davenport’s Alleged Misdeeds
      The estate alleges that the University Hospital’s staff “declared Cummings a

non-survivor shortly after his arrival,” that his papers included an instruction from

Davenport that “‘no heroic measures’ would be taken to save his life,” and that this

instruction came from Davenport. Dr. Sherry Melton, at Davenport’s instruction,

entered a do-not-resuscitate order for Cummings at about 9:17 p.m. “Melton relied

upon the statements of Defendant Davenport, a non-family member and not a legal

guardian, to place Cummings on [the order].” Gaines and other family members

were at the hospital at the time.

      At some point, “medical personnel informed Ms. Gaines that Warden

Davenport authorized [them] to stop giving Cummings medication and to

disconnect the life support machine.” Gaines protested that she wanted Cummings

to stay on life support because “he was still breathing and responding to verbal



                                             4
              Case: 17-13999     Date Filed: 10/02/2018    Page: 5 of 19


commands.” But the University Hospital staff “repeatedly conveyed that ‘it was

not her (Ms. Gaines’[s]) call’ because the State had legal custody over Cummings

and that the decision to let her son die was the Warden’s decision.” The estate

alleges that Cummings’s removal from life support was “[b]ased on this directive

from Warden Davenport.”

                      C. The Proceedings in the District Court

      After Cummings’s death, his estate and Gaines filed a complaint against the

Alabama Department of Corrections, the University Hospital, and several

Department and University Hospital employees, including Davenport. The estate

and Gaines asserted federal claims under section 1983 as well as state-law claims

of wrongful death, outrage, and negligence. The defendants moved to dismiss the

complaint, and the district court dismissed all claims except for one against

Davenport.

      The district court denied Davenport’s motion to dismiss the estate’s claim of

deliberate indifference based on qualified immunity. Although Davenport

“den[ied] that [he] violated any of [Cummings’s] rights” and contended that the

estate had not identified a violation of clearly established constitutional law, the

district court ruled both that the complaint stated a claim of deliberate indifference

to serious medical needs and that Davenport could not invoke qualified immunity




                                           5
              Case: 17-13999      Date Filed: 10/02/2018   Page: 6 of 19


because he had not established that his alleged actions were within his

“discretionary authority” as a state official.

      After the district court issued its memorandum opinion granting the motions

to dismiss in part, the estate and Gaines filed an amended complaint. Davenport

moved to dismiss the amended complaint and again asserted qualified immunity,

this time in less conclusory fashion. He argued that his alleged actions fell within

his discretionary authority because, as a prison warden, it was his responsibility to

“supervis[e] and control[] the care and custody of inmates including their medical

care.” He argued that the amended complaint failed to state a claim of deliberate

indifference because it focused on whether “the proper person” had made medical

decisions for Cummings, not on any denial of medical care. And he maintained

that no authority clearly established that Davenport’s actions were

unconstitutional.

      The district court again dismissed all claims except the estate’s claim of

deliberate indifference against Davenport. It reasoned that Davenport had not

“cite[d] any authority suggesting that a warden’s authority to make [medical]

decisions . . . for inmates extends to making end-of-life decisions.” And it

concluded, based on Alabama law, that a warden must either have an advance

directive from the patient or be a court-appointed guardian to make those

decisions. The district court concluded that Davenport had not met his burden of



                                            6
              Case: 17-13999     Date Filed: 10/02/2018    Page: 7 of 19


establishing that the alleged acts were within his discretionary authority, so he

could not claim qualified immunity.

             II. JURISDICTION AND STANDARD OF REVIEW

      Although we ordinarily have jurisdiction to review only “final decisions of

the district courts,” 28 U.S.C. § 1291, “a district court’s order rejecting qualified

immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within

the meaning of [section] 1291.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). Under

the collateral-order doctrine, “pretrial orders denying qualified immunity” are

immediately appealable “because such orders conclusively determine whether the

defendant is entitled to immunity from suit,” the immunity “is both important and

completely separate from the merits of the action,” and an erroneous denial of

immunity “could not be effectively reviewed on appeal from a final judgment

because by that time the immunity from standing trial will have been irretrievably

lost.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014). “We review de novo a

district court’s denial of qualified immunity on a motion to dismiss. . . . In doing

so, we accept as true the facts alleged in the complaint, drawing all reasonable

inferences in a plaintiff’s favor.” Bailey, 843 F.3d at 480.

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that Davenport is

not entitled to qualified immunity because Alabama law establishes that his alleged



                                           7
              Case: 17-13999     Date Filed: 10/02/2018    Page: 8 of 19


actions were not within his discretionary authority. Second, we explain that we

lack jurisdiction to consider whether the amended complaint states a claim of

deliberate indifference to serious medical needs.

     A. Davenport Is Not Entitled to Qualified Immunity Because His Alleged
              Actions Were Not Within His Discretionary Authority.

      The district court ruled, and we agree, that Davenport is not entitled to

qualified immunity because he failed to establish that his alleged actions were

within his discretionary authority. Davenport has the initial burden of raising the

defense of qualified immunity by proving that his discretionary authority extended

to his alleged actions. Because Alabama law establishes that a prison warden does

not have the discretionary authority to control a dying inmate’s end-of-life

decisions, Davenport cannot satisfy that burden and is not entitled to qualified

immunity.

      “[G]overnment officials performing discretionary functions[] generally are

shielded from liability [or suit] for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (explaining that qualified immunity

is an immunity from suit, not just liability). The “breathing room” afforded by

qualified immunity is generous; within its scope, “it protects ‘all but the plainly




                                           8
              Case: 17-13999     Date Filed: 10/02/2018    Page: 9 of 19


incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

      Although qualified immunity provides government officials with a

formidable shield, their entitlement to raise that shield is not automatic. We have

explained that the official bears the initial burden of raising the defense of qualified

immunity by proving that he was acting within his authority:

      To establish the defense of qualified immunity, the burden is first on
      the defendant to establish that the allegedly unconstitutional conduct
      occurred while he was acting within the scope of his discretionary
      authority. If, and only if, the defendant does that will the burden shift
      to the plaintiff to establish that the defendant violated clearly
      established law.

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998) (emphasis

added) (citation omitted).

      “To establish that the challenged actions were within the scope of his

discretionary authority, a defendant must show that those actions were (1)

undertaken pursuant to the performance of his duties, and (2) within the scope of

his authority.” Id. at 1282. In other words, “[w]e ask whether the government

employee was (a) performing a legitimate job-related function (that is, pursuing a

job-related goal), (b) through means that were within his power to utilize.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “In

applying each prong of this test, we look to the general nature of the defendant’s

action, temporarily putting aside the fact that it may have been committed for an

                                           9
             Case: 17-13999      Date Filed: 10/02/2018    Page: 10 of 19


unconstitutional purpose, in an unconstitutional manner, to an unconstitutional

extent, or under constitutionally inappropriate circumstances.” Mikko v. City of

Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017) (quoting Holloman, 370 F.3d at

1266)). “[A] government official can prove he acted within the scope of his

discretionary authority by showing ‘objective circumstances which would compel

the conclusion that his actions were undertaken pursuant to the performance of his

duties and within the scope of his authority.’” Rich v. Dollar, 841 F.2d 1558, 1564

(11th Cir. 1988) (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. Unit A

July 1981)). A “bald assertion by the defendant that the complained-of actions

were . . . within the scope of his discretionary authority” is insufficient. Barker,

651 F.2d at 1124–25.

      We look to state law to determine the scope of a state official’s discretionary

authority, as our decisions in Harbert International and Lenz v. Winburn, 51 F.3d

1540 (11th Cir. 1995), illustrate. In Harbert International, we examined Alabama

law and the terms of a state contract to determine that directors of the Alabama

Department of Transportation had the authority to withhold liquidated damages

from a contractor. See 157 F.3d at 1283. And in Lenz, we held that a Florida

guardian ad litem lacked the authority to enter a home and retrieve a child’s

possessions because Florida law established that the defendant’s role was to be the




                                           10
             Case: 17-13999      Date Filed: 10/02/2018    Page: 11 of 19


child’s “legal representative, not . . . the child’s caretaker or guardian.” 51 F.3d at

1547 (emphasis omitted).

      The district court correctly looked to Alabama law to determine whether

Davenport’s alleged actions were within his authority. And it correctly held that

they were not. The Alabama Natural Death Act, Ala. Code § 22-8A-1 et seq.,

compels the conclusion that the office of a prison warden grants no authority to

enter a do-not-resuscitate order or to order the withdrawal of artificial life support

on behalf of a dying inmate.

      The Act establishes a comprehensive legislative scheme for end-of-life

medical decisions, including the decisions to enter a do-not-resuscitate order, see

id. § 22-8A-3(7), and to withdraw artificial life support, see id. § 22-8A-3(2), (10).

Based on the legislative finding that “competent adult persons have the right to

control the decisions relating to . . . the decision to have medical procedures, life-

sustaining treatment, and artificially provided nutrition and hydration provided,

withheld, or withdrawn,” id. § 22-8A-2, the Act empowers any competent adult to

execute a living will that directs his end-of-life care or to designate another

competent adult to make decisions for him as his health-care proxy, see id. §§ 22-

8A-4, -6.

      For permanently incapacitated patients who have neither executed a living

will nor designated a health-care proxy, the Act establishes a comprehensive



                                           11
             Case: 17-13999     Date Filed: 10/02/2018   Page: 12 of 19


scheme that specifies who may make end-of-life decisions. See id. § 22-8A-11(a),

(d). The highest-priority surrogate is “[a] judicially appointed guardian, provided

the appointment specifically authorizes the guardian to make decisions regarding

the withholding of life-sustaining treatment or artificially provided nutrition and

hydration.” Id. § 22-8A-11(d)(1). The patient’s spouse, adult children, parents,

adult siblings, and other adult relatives follow respectively. See id. § 22-8A-

11(d)(2)–(6). If the patient has no known relatives, a committee of medical

professionals may act as a surrogate. See id. § 22-8A-11(d)(7).

      The Act establishes that Davenport lacked the discretionary authority to

instruct the University Hospital to enter a do-not-resuscitate order for Cummings

or to withdraw his artificial life support. Under the Act, only an authorized

surrogate can consent to a do-not-resuscitate order, id. § 22-8A-3(7), or “determine

whether to provide, withdraw, or withhold life-sustaining treatment or artificially

provided nutrition and hydration,” id. § 22-8A-11(a). Nothing in the Act

empowered Davenport, as a prison warden, to act as the surrogate of a dying

inmate. Davenport could outrank Cummings’s relatives in the hierarchy of

priority—or figure in the hierarchy at all—only if a court appointed him

Cummings’s guardian and “specifically authorize[d] [him] to make decisions

regarding the withholding of life-sustaining treatment or artificially provided




                                          12
             Case: 17-13999      Date Filed: 10/02/2018    Page: 13 of 19


nutrition and hydration,” id. § 22-8A-11(d)(1). And Davenport has never suggested

that he received such an appointment.

      The Act is fatal to Davenport’s defense of qualified immunity. Davenport

argues that his alleged actions were within his discretionary authority because an

inmate “is in the legal custody of the warden,” Ex parte Rogers, 82 So. 785, 785

(Ala. Ct. App. 1919), and “[d]ecision-making related to the provision of medical

care for inmates . . . [falls] soundly within [prison officials’] discretion,” Edwards

v. Ala. Dep’t of Corr., 81 F. Supp. 2d 1242, 1252 (M.D. Ala. 2000). We have no

quarrel with these firmly established legal principles. But they do not “compel the

conclusion,” Barker, 651 F.2d at 1121, that an Alabama warden has the authority

to enter a do-not-resuscitate order or to consent to the withdrawal of artificial life

support on behalf of a dying inmate. And the Act makes clear that an Alabama

warden does not in fact have that authority.

      Davenport contends that the Act “ha[s] no application to the facts of this

case,” but he misunderstands the relevance of the Act to this appeal. He argues that

the provisions of the Act had not “become operative in Cummings’[s] case”

because the amended complaint does not allege that Cummings executed a living

will or designated a health-care proxy or that Gaines was ever “made” a surrogate.

But the Act controls this appeal not because it tells us the limits of Gaines’s

authority, but because it tells us the limits of Davenport’s. The Act specifies, in



                                           13
              Case: 17-13999    Date Filed: 10/02/2018    Page: 14 of 19


order of priority, who may make end-of-life decisions on behalf of a permanently

incapacitated patient, and a prison warden is nowhere on the list. See Ala. Code

§ 22-8A-11.

      It is a familiar canon that “[t]he expression of one thing implies the

exclusion of others.” Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts § 10, at 107 (2012) (emphasis omitted). And the

Act’s list of potential surrogates includes not just “one thing,” but a range of

specific possibilities that include a court-appointed guardian, any member of the

patient’s family, and a medical committee. See Ala. Code § 22-8A-11(d)(1)–(7).

The conclusion that “the expression of” all of these possible surrogates “implies

the exclusion of others”—including a prison warden—is inescapable. See Scalia &

Garner, Reading Law § 10, at 107 (emphasis omitted) (explaining that the

“negative-implication canon” applies when the inclusions “can reasonably be

thought to be an expression of all that shares in the grant or prohibition involved”).

      The principle that we "look to the general nature of the defendant's action" to

determine whether an official was acting within his discretionary authority does

not change our conclusion. Mikko, 857 F.3d at 1144 (quoting Holloman, 370 F.3d

at 1266)). Davenport argues that he is entitled to qualified immunity because he

had some general authority to make medical decisions for inmates, but this

argument misunderstands our precedents. The reason we take care not to “assess



                                          14
             Case: 17-13999      Date Filed: 10/02/2018    Page: 15 of 19


the defendant’s act at too high a level of generality,” Holloman, 370 F.3d at 1266,

is not to give officials additional slack; it is to avoid the “tautology” of asking

whether a defendant had the authority to violate the law, Harbert Int’l, 157 F.3d at

1282. What we strip away from the defendant’s allegedly unconstitutional action to

isolate its “general nature” is nothing more than its alleged unconstitutionality:

“that it may have been committed for an unconstitutional purpose, in an

unconstitutional manner, to an unconstitutional extent, or under constitutionally

inappropriate circumstances.” Holloman, 370 F.3d at 1266; see also id. (“[W]e

consider a government official’s actions at the minimum level of generality

necessary to remove the constitutional taint.”).

      If Davenport categorically lacked the authority to enter a do-not-resuscitate

order or to withdraw Cummings’s life support, we cannot hold that he is entitled to

qualified immunity simply because he had some authority to make other medical

decisions. That shift in the level of generality would be more generous to

Davenport than is “necessary to remove the constitutional taint,” id. If Alabama

did empower prison wardens to make end-of-life decisions for permanently

incapacitated inmates, then we would have to decide whether Davenport’s exercise

of that authority violated clearly established constitutional law. But the Act makes

clear that Alabama has not given prison wardens that authority, and our recognition




                                           15
             Case: 17-13999     Date Filed: 10/02/2018    Page: 16 of 19


that Davenport’s alleged actions were outside his discretionary authority says

nothing about the merits of the estate’s constitutional claim.

      Finally, contrary to our precedents, Davenport suggests that the

discretionary-authority requirement is not part of the qualified-immunity analysis.

He asserts that “[w]hile the requirement . . . is ubiquitous in Eleventh Circuit

authority, interestingly, such a requirement is nowhere to be found in Supreme

Court qualified immunity cases.” True, the Supreme Court has never addressed the

scope of an official’s burden to establish that a suit against him is based on actions

taken within his authority, but Davenport is wrong to suggest that Supreme Court

precedent offers no support for such a requirement. On the contrary, the Court has

explained that “[t]he conception animating the qualified immunity doctrine . . . is

that ‘where an official’s duties legitimately require action in which clearly

established rights are not implicated, the public interest may be better served by

action taken with independence and without fear of consequences.’” Mitchell, 472

U.S. at 525 (emphasis added) (some internal quotation marks omitted) (quoting

Harlow, 457 U.S. at 819); see also Harlow, 457 U.S. at 819 (emphasizing that

qualified immunity “provide[s] no license to lawless conduct”). And recent

precedent reiterates that “[g]overnment officials are entitled to qualified immunity

with respect to ‘discretionary functions’ performed in their official capacities.”




                                          16
             Case: 17-13999     Date Filed: 10/02/2018   Page: 17 of 19


Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (emphasis added) (quoting

Anderson v. Creighton, 483 U.S. 635, 638 (1987)).

      We acknowledge that not every circuit court has formulated the

discretionary-authority requirement as part of its qualified-immunity analysis, see,

e.g., Stanley v. Gallegos, 852 F.3d 1210, 1214–16 (10th Cir. 2017) (opinion of

Hartz, J.) (collecting cases and discussing pros and cons of the requirement); id. at

1225–27 (Holmes, J., concurring in the judgment) (arguing that Tenth Circuit

precedent forecloses the requirement), and we acknowledge that not all of those

that have formulated it apply it in precisely the same way as this Court, see In re

Allen, 119 F.3d 1129, 1132 (4th Cir. 1997) (Motz, J., concurring in the denial of

rehearing en banc). But these ambiguities, however potentially fascinating to legal

scholars, are of no help to Davenport in this appeal.

      As Davenport concedes, we are bound by “ubiquitous” circuit precedent to

apply the discretionary-authority requirement. And we are bound to hold, based on

the comprehensive Alabama law that governs end-of-life decisions, that Davenport

acted beyond the scope of his discretionary authority when he allegedly instructed

the University Hospital to enter a do-not-resuscitate order for Cummings and to

remove him from artificial life support. We affirm the denial of qualified

immunity.




                                          17
              Case: 17-13999     Date Filed: 10/02/2018    Page: 18 of 19


      B. We Lack Jurisdiction to Consider Whether the Amended Complaint
                                  States a Claim.

      Davenport also contends that we should reverse because the amended

complaint fails to state a claim, but we lack jurisdiction to do so. Although

Davenport is right that “[s]tating a constitutional claim is a precondition . . . to

defeat[ing] the qualified immunity defense,” this correct statement of law

presupposes a defendant who, unlike Davenport, has satisfied his burden. “To

establish the defense of qualified immunity, the burden is first on the defendant to

establish that the allegedly unconstitutional conduct occurred . . . within the scope

of his discretionary authority,” and “only if[] the defendant does that will the

burden shift to the plaintiff.” Harbert Int’l, 157 F.3d at 1281; see also Rich, 841

F.2d at 1563–64 (explaining the “two-step framework” of our qualified-immunity

analysis). Davenport failed to satisfy his threshold burden, so there is no defense

for the estate to “defeat,” and the district court did not err when it denied qualified

immunity. This holding exhausts our jurisdiction under the collateral-order

doctrine.

      We can review the district court’s “pretrial order[] denying qualified

immunity” only because an official’s potential immunity from suit “is both

important and completely separate from the merits of the action,” is “conclusively

determine[d]” by an adverse order, and is “irretrievably lost” by the time it could

be “reviewed on appeal from a[n adverse] judgment.” Plumhoff, 134 S. Ct. at 2019.


                                           18
             Case: 17-13999     Date Filed: 10/02/2018    Page: 19 of 19


We have concluded that the district court did not err when it “determine[d]” that

Davenport failed to establish the defense of qualified immunity, so he has not

“irretrievably lost” anything to which he was entitled. As a result, for us to

consider whether the amended complaint states a claim would be an inappropriate

adventure into “the merits of the action,” which are “completely separate” from

this interlocutory appeal. Davenport’s argument that the district court erred when it

ruled that the amended complaint states a claim must await adjudication on appeal

from a final judgment.

                                IV. CONCLUSION

      We AFFIRM the order denying Davenport qualified immunity.




                                          19
