                    United States Court of Appeals,

                                Fifth Circuit.

                                 No. 94-60337

                            Summary Calendar.

               George WICKS, Sr., Plaintiff-Appellee,

                                       v.

   MISSISSIPPI STATE EMPLOYMENT SERVICES, et al., Defendants,

                  Hazel Cook, Defendant-Appellant.

                                Jan. 6, 1995.

Appeal from the United States District Court for the Northern
District of Mississippi.

Before POLITZ, Chief Judge, KING and STEWART, Circuit Judges.

     POLITZ, Chief Judge:

     Hazel Cook appeals the district court's denial of a protective

order preventing all discovery prior to consideration of her motion

to dismiss.    For the reasons assigned, we reverse and remand for

further proceedings consistent herewith.

                                  Background

     George Wicks, Sr., an African-American male, applied for a

management    position   with    his   employer,   the   Mississippi   State

Employment Service.      The promotion was given to a white employee.

Wicks filed suit against MSES and Hazel Cook, a former supervisor

of Wicks, asserting both a racial discrimination claim1 and a first

amendment claim.2    On April 13, 1994 Cook contemporaneously filed

     1
      42 U.S.C. § 1981 (Supp. III 1991).
     2
      42 U.S.C. § 1983 (1988). Wicks also asserted a claim under
Title VII of the Civil Rights Act of 1964 against the MSES. That

                                       1
two motions:     (1) a "Motion to Dismiss, or in the Alternative, for

Summary     Judgment,"   which   asserted    the   defense   of    qualified

immunity3 and (2) a "Motion to Hold Discovery in Abeyance" pending

the consideration of Cook's qualified immunity defense.

     With the motion to dismiss pending before the district court,

the discovery motion was referred to a magistrate judge who issued

an order staying all discovery except for that related to Cook's

defense of qualified immunity.           Cook objected to this limited

discovery order and the district court affirmed the magistrate

judge.

     Cook appeals the order allowing discovery on the issue of

qualified immunity.      The motion to dismiss remains pending before

the district court.

                                 Analysis

         Wicks vigorously maintains that we are without subject matter

jurisdiction     to   hear   this   appeal    of    a   discovery     order.

"Ordinarily, an order compelling limited discovery is interlocutory

and not appealable under the final judgment rule...."4            The Supreme


claim is not at issue in this appeal.
     3
      "Although the statutory language of § 1983 does not
expressly provide for an immunity defense, courts have
consistently held that "government officials are entitled to some
form of immunity from suits for damages. As recognized at common
law, public officers require this protection to shield them from
undue interference with their duties and from potentially
disabling threats of liability.' " Geter v. Fortenberry (Geter
I), 849 F.2d 1550, 1552 (5th Cir.1988) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2731, 73 L.Ed.2d
396 (1982)).
     4
      Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir.1987)
(citing 28 U.S.C. § 1291 (1986)).

                                     2
Court has held, however, that orders denying substantial claims of

qualified immunity are immediately appealable under the collateral

order doctrine.5 Cook equally vigorously contends that in allowing

limited discovery on the issue of qualified immunity, the district

court effectively has denied her the benefits of the qualified

immunity defense, the most relevant being the protection from

pretrial discovery.6     Thus, she argues, the district court's order

is appealable immediately under the collateral order doctrine and

this court has appellate jurisdiction.              We hold today that the

discovery order denied Cook the benefits of the qualified immunity

defense, thereby vesting this court with the requisite jurisdiction

to review the discovery order.7

         In Lion Boulos v. Wilson, we held that a party asserting the

defense of qualified immunity is not immune from all discovery,

only that which is "avoidable or overly broad."8            We stated that

when the district court "is unable to rule on the immunity defense

without further clarification of the facts" and when the discovery

order is "narrowly tailored to uncover only those facts needed to

rule on     the   immunity   claim,"   an   order   allowing   such   limited

discovery is neither avoidable nor overly broad.9               Under those

     5
      Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985).
     6
      Helton v. Clements, 787 F.2d 1016 (5th Cir.1986).
     7
      Mitchell.
     8
      834 F.2d at 507.
     9
      Id. at 507-08. The Lion Boulos court noted that when the
assertion of the qualified immunity defense turned purely on a

                                       3
conditions,       we   held    that   the      appellate   court     was   without

jurisdiction to review the discovery order.

      Discovery under Lion Boulos, however, must not proceed until

the district court first finds that the plaintiff's pleadings

assert    facts    which,     if   true,    would   overcome   the    defense   of

qualified immunity.10         This heightened pleading requirement, first

articulated in Elliott v. Perez,11 requires Wicks to allege the


question of law, the district court should rule on the motion to
dismiss without discovery. Id. at 508. The same would be true
if the facts upon which the defense of qualified immunity turned
were not disputed by the parties. See Anderson v. Creighton, 483
U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523
(1987) ("[I]f the actions Anderson claims he took are different
from those the Creightons allege ... then discovery may be
necessary before Anderson's motion for summary judgment on
qualified immunity grounds can be resolved.").
     10
      Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th
Cir.1994) ("The burden of negating the defense lies with the
plaintiffs."); Geter I, 849 F.2d at 1554 ("Where a plaintiff's
pleadings assert facts which, if proven, would defeat a qualified
immunity defense, limited discovery may be permitted tailored to
the issue of qualified immunity."); Lion Boulos (citing Elliott
v. Perez, 751 F.2d 1472 (5th Cir.1985)); Brown v. Texas A & M
Univ., 804 F.2d 327, 333 (5th Cir.1986) ("[T]he issue of
qualified immunity is a threshold question, and "[u]ntil this
threshold immunity question is resolved, discovery should not be
allowed.' ") (citing Harlow, 457 U.S. at 817, 102 S.Ct. at 2738
(1982)). See also Jacquez v. Procunier, 801 F.2d 789 (5th
Cir.1986).
     11
      751 F.2d 1472 (5th Cir.1985 (citing Leatherman v. Tarrant
County Narcotics Unit, --- U.S. ----, 113 S.Ct. 1160, 122 L.Ed.2d
517 (1993)), Wicks contends that the heightened pleading standard
cannot be reconciled with the concept of notice pleading set
forth in the Federal Rules of Civil Procedure. We note, however,
that the Leatherman decision expressly refrained from considering
"whether [its] ... qualified immunity jurisprudence would require
a heightened pleading in cases involving individual government
officials." Id. at ----, 113 S.Ct. at 1162. In the absence of
such a ruling, we are bound to follow the decisions of prior
panels which have required plaintiffs to meet the heightened
standard. Schultea v. Wood, 27 F.3d 1112 (5th Cir.1994), reh'g
en banc granted (Aug. 26, 1994). See also Branch v. Tunnell, 14

                                           4
particular facts forming the basis of his claim, including those

preventing Cook from successfully maintaining a qualified immunity

defense.       To overcome the immunity defense, the complaint must

allege facts that, if proven, would demonstrate that Cook violated

clearly        established    statutory       or   constitutional      rights.12

Heightened       pleading    demands   more    than    bald   allegations     and

conclusionary statements.13         Wicks must allege facts specifically

focusing on the conduct of Cook which caused his injury.14

          If   Wicks'   complaint   falls     short   of   this   standard,   the

district court should rule on the motion to dismiss before any

discovery is allowed.15        The allowance of discovery without this

threshold showing is immediately appealable as a denial of the true

measure of protection of qualified immunity.16                If the complaint


F.3d 449 (9th Cir.) (holding that a panel is bound by prior
panel's adoption of heightened pleading because Leatherman did
not undermine that precedent), cert. denied, --- U.S. ----, 114
S.Ct. 2704, 129 L.Ed.2d 832 (1994).
     12
          Jacquez (citing Harlow).
     13
          Streetman v. Jordan, 918 F.2d 555 (5th Cir.1990).
     14
          Jacquez.
     15
      See Geter I, 849 F.2d at 1554 ("Where a plaintiff's
pleadings assert facts which, if proven, would defeat a qualified
immunity defense, limited discovery may be permitted tailored to
the issue of qualified immunity."); Geter v. Fortenberry (Geter
II), 882 F.2d 167 (5th Cir.1989) (accord).
     16
      In its decisions in Harlow and Mitchell, the Supreme Court
made clear that immunity means more than just immunity from
liability; it means immunity from the burdens of defending a
suit, including the burdens of pretrial discovery. Thus, "courts
have an obligation to carefully scrutinize a plaintiff's claim
before subjecting public officials to the burdens of broad
reaching discovery." Jacquez, 801 F.2d at 791. The failure to
do so is immediately appealable under Mitchell.

                                        5
alleges facts to overcome the defense of qualified immunity, the

district court may then proceed under Lion Boulos to allow the

discovery necessary to clarify those facts upon which the immunity

defense turns.17

      Thus, the initial step in our review requires an examination

of Wicks' complaint to see if his allegations negate Cook's defense

of qualified immunity.        In so doing, we find two allegations

against Cook.     First, Wicks complains that Cook violated his first

amendment rights by discriminating against him because of his

protests of two reprimands issued by Cook.      His complaint states:

     [T]he fact that Plaintiff [Wicks] had exercised his First
     Amendment rights by appealing and protesting two unjustified
     write-ups given him by the Defendant, Hazel Cook, Plaintiff's
     supervisor, also contributed to the failure to get the
     promotion. Hazel Cook contributed to Plaintiff's failure to
     get the promotion because she entertains a hostility toward
     Plaintiff because of his protesting the unjustified write-ups
     that she had given him.

                                    . . . . .

     [H]er adverse comments about Plaintiff, ... based upon
     Plaintiff's protesting unjustified employment actions against
     him was [sic] also a proximate cause of Plaintiff's not
     getting the promotion.

Our decisions have established that a public employee asserting a

first amendment claim against his employer must show that the

speech in question involves a matter of public concern, that his

interest in commenting upon those matters is greater than the

defendant's interest in promoting efficiency in delivery of public

services, and that his speech motivated the defendant's offensive



     17
          Lion Boulos;   Geter I.

                                       6
acts.18

          Wicks' allegations fail to suggest how Cook violated his

clearly-established first amendment rights.     The most expansive

reading of his complaint discloses no basis for a finding that his

charges about poor "write-ups" are a matter of public concern.

Moreover, the allegation that his speech motivated Cook's tortious

acts is wholly conclusionary. Nor did Wicks allege exactly what he

believes Cook did to prevent his promotion.19     The gravamen of

Wicks' complaint appears to be nothing more than an attempt to

redress a personal grievance, a claim not generally actionable

against a public employer.20

      Wicks also complains that Cook discriminated against him on

the basis of race,21 stating in his complaint that:

     18
      Thompson v. City of Starkville, 901 F.2d 456 (5th
Cir.1990).
     19
      Wicks argues in brief that Cook "poisoned the well" by
making adverse verbal comments and by making "unjustified and
unsubstantiated negative written reports" while his supervisor.
Whereas these arguments may be more specific, we may not consider
them because they do not appear in the pleadings, the focal point
of the inquiry under Elliott.
     20
      Thompson, 901 F.2d at 461 ("The rationale behind the
public concern requirement is to prevent public employees from
relying on the Constitution for redress of personal grievances.")
(citing Connick v. Myers, 461 U.S. 138, 149, 103 S.Ct. 1684,
1691, 75 L.Ed.2d 708 (1983)).
     21
      We note that Wicks brings this claim under 42 U.S.C. §
1981. Racial discrimination claims under this section also are
subject to the defense of qualified immunity. See Saunders v.
Bush, 15 F.3d 64 (5th Cir.1994) (barring section 1981 claim due
to absolute and qualified immunity of defendants). Although the
heightened pleading standard enunciated in Elliott has been
applied only in the context of section 1983 claims, the rationale
of that decision applies to all civil rights actions where the
defense of qualified immunity is asserted. An immunity from suit

                                  7
     Hazel Cook customarily and habitually treated black employees
     in a less favorable fashion than white employees, and her
     adverse comments about Plaintiff, based upon race and based
     upon Plaintiff's protesting unjustified employment actions
     against him, was also a proximate cause of Plaintiff's not
     getting the promotion.

Again, Wicks makes only broad and wholly conclusional allegations

that Cook discriminated against him on the basis of race.                   While

Wicks does allege racial animus, an element of the prima facie case

for his discrimination claim, he fails to allege any conduct of

Cook that could be considered to "violate a clearly established

statutory ... right."22         At best, Wicks states the conclusion that

his race is the cause of any adverse comments Cook may have made.

Wicks     must    allege   particular    facts   showing   behavior    by    Cook

motivated        by   racial   animus.    To   merely   make   the   charge    is

insufficient;         the complaint must "state with factual detail and

particularity the basis for the claim which necessarily includes

why the defendant-official cannot successfully maintain the defense


does not vary with the statutory basis for that suit, and as we
said in Elliott:

             [W]e conclude that allowing broadly-worded complaints,
             such as those of the plaintiffs here, which leaves to
             traditional pretrial depositions, interrogatories, and
             requests for admission the development of the real
             facts underlying the claim, effectively eviscerates
             important functions and protections of official
             immunity.
     22
      See Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d
1214, 1219 (5th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct.
709, 98 L.Ed.2d 660 (1988) (holding that section 1981 claim
requires direct or circumstantial evidence of purposeful
discrimination).

     751 F.2d at 1476. Thus, Wicks must meet the heightened
     pleading standard for his section 1981 claim as well as his
     section 1983 claim.

                                         8
of   immunity."23         Wicks'   complaint     is     devoid   of   such   detail;

accordingly, we conclude that Wicks has failed to state a racial

discrimination claim sufficient to overcome Cook's defense of

qualified immunity.

      Because we find that Wicks failed to meet the threshold

pleading requirements for either of his claims, we hold that any

discovery by Wicks, even that limited in scope, is improper and

immediately appealable as a denial of the benefits of the qualified

immunity defense.          Because of this disposition of the discovery

issue,       we   need    not   address       whether    the     immunity    defense

sufficiently turned on a factual issue requiring discovery under

Lion Boulos.       Moreover, we need not address Cook's contention that

the discovery order was overly broad.

           We are aware that by requiring heightened pleading before

discovery some plaintiffs will be unable to state a claim.                   But, as

noted in the concurring opinion in Elliott, the "denial of some

meritorious claims is the direct product of the immunity doctrine

which weighed these losses when it struck the policy balance."24

The seeming unfairness of this conclusion is tempered by this

circuit's directives to allow a plaintiff initially failing to

state a claim the opportunity to amend or supplement the pleadings

freely, so that he may state his best case.25                  Where the plaintiff

has filed only one pleading, as Wicks has here, immediate dismissal

      23
           Elliott, 751 F.2d at 1473.
      24
           Id. at 1483.
      25
           Jacquez.

                                          9
ordinarily is not justified.26         Thus, on remand, Wicks should be

given an opportunity to plead his case properly before dismissal is

considered.

          The   denial   of   Cook's   request   for   a   protective   order

preventing all discovery until consideration of the motion to

dismiss is REVERSED and the request is GRANTED.            We REMAND to the

district court for consideration of the motion to dismiss in a

manner consistent herewith.27




     26
          Id. at 792.
     27
      Cook asks this court to hold that a motion to dismiss must
be considered prior to the allowance of any discovery. We
disagree. While we hold today that Lion Boulos requires a
preliminary consideration of the pleadings prior to the allowance
of discovery on the issue of qualified immunity, this inquiry
need not result in a ruling on a motion to dismiss. Indeed, Lion
Boulos illustrates a situation where a plaintiff satisfies the
heightened pleading but alleges facts upon which the immunity
defense turns which are disputed by the defendant. In such a
situation, Lion Boulos held that discovery limited to the issue
of the immunity defense could proceed "before ruling on a
defendant's motion to dismiss...." 834 F.2d at 507. Thus, we
impose no requirement that the district court must rule on a
motion to dismiss prior to the allowance of discovery in all
situations. Rather, we hold simply that if the pleadings fail to
state facts sufficient to overcome the defense of qualified
immunity, then limited discovery is improper and dismissal, as
qualified above, is in order.

                                       10
