     Case: 11-10703     Document: 00511756978         Page: 1     Date Filed: 02/13/2012




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

                                                                            FILED
                                                                         February 13, 2012

                                     No. 11-10703                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MARY DAVALOS,

                                                  Plaintiff - Appellee
v.

JASON JOHNS, #8861,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-222


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellee Mary Davalos brought this lawsuit against Defendant-
Appellant Jason Johns, a City of Dallas Police Officer, asserting claims under
42 U.S.C. § 1983 for unlawful arrest and excessive force. Johns appeals the
district court’s denial of his motion requesting a Rule 7(a) reply from Davalos.
We conclude that we have no jurisdiction over this appeal, and we therefore
DISMISS the appeal.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-10703

      On February 7, 2011, Mary Davalos (“Davalos”) filed this lawsuit in
federal district court against Jason Johns (“Johns”), a City of Dallas Police
Officer, asserting claims under 42 U.S.C. § 1983 for illegal arrest and excessive
force in violation of her Fourth Amendment rights. On April 15, 2011, Johns
filed an answer to her complaint, wherein he asserted, inter alia, the defense of
qualified immunity.
      Johns then filed a motion seeking the court to order Davalos to file a reply
pursuant to Rule 7(a) of the Federal Rules of Civil Procedure. Under Schultea
v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc), the district court “may, in its
discretion, insist that a plaintiff file a reply tailored to an answer pleading the
defense of qualified immunity.” Id. at 1433-34. In his motion, Johns argued that,
under Schultea, “[v]indicating the immunity doctrine will ordinarily require such
a reply, and a district court’s discretion not to do so is narrow indeed when
greater detail might assist.” Id. at 1434; see also Reyes v. Sazan, 168 F.3d 158,
161 (5th Cir. 1999). Davalos opposed the motion. On July 13, 2011, the district
court denied Johns’s motion. The court explained that it “ha[d] reviewed
Plaintiff’s Complaint and [found] that the allegations are pled with sufficient
particularity to respond to the defense of qualified immunity, making a Rule 7(a)
Reply unnecessary.” Johns appealed the court’s order.
      We must first decide whether we have jurisdiction to hear this
interlocutory appeal. Johns argues that we have jurisdiction over his appeal
pursuant to 28 U.S.C. § 1291 and Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541, 546 (1949). Under Cohen, the collateral order doctrine allows appeals
from a “small class [of orders] which finally determine claims of right separable
from, and collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” Id. To be an
immediately appealable order under the Cohen collateral order doctrine, an

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                                  No. 11-10703

order must: “[1] conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the action, and [3] be
effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546
U.S. 345, 349 (2006) (citations and internal quotation marks omitted).
      Johns argues that the district court’s order deprived him of his qualified
immunity from suit, because the order “finally resolved the issue of whether
Johns was subject to at least limited discovery and other pretrial matters.”
Johns stresses that the Supreme Court has emphasized that qualified immunity
is “an entitlement not to stand trial or face the other burdens of litigation,” and
that “even such pretrial matters as discovery are to be avoided if possible.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow v. Fitzgerald, 457
U.S. 800, 816-18 (1982)). Johns asserts that we have jurisdiction over this
appeal because the district court’s order subjects him to discovery—a burden of
litigation from which qualified immunity should protect him—and his immunity
from this burden is too important and too independent from Davalos’s claims to
be denied immediate appellate review.
      We conclude that we lack jurisdiction over this appeal. We were presented
with the same jurisdictional question in Fulton v. Caraway, 400 F. App’x 918
(5th Cir. 2010), in which we held that a district court’s denial of a motion for a
Rule 7(a) reply was not an immediately appealable collateral order. Although
Fulton is a non-precedential opinion, see 5th Cir. Rule 47.5, we find that its
reasoning is sound, persuasive, and applicable to the question before us. In
Fulton, we explained that the Supreme Court has held that government officials
can appeal district court decisions that deny them qualified immunity, to the
extent that the district court decisions turn on questions of law. Id. at 919-20;
see also Mitchell, 472 U.S. at 526-28. The Court’s rationale is that qualified
immunity is not “a mere defense to liability,” but “an immunity from suit” and
the burdens of litigation. Mitchell, 472 U.S. at 526. Thus, the Fulton court held

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                                   No. 11-10703

that “[w]e unquestionably would have jurisdiction over an appeal of a denial of
a motion to dismiss a § 1983 claim on a defense of qualified immunity.” Fulton,
400 F. App’x at 920. However, we stated that a denial of a motion for a Rule 7(a)
reply is a “non-dispositive” order that does not fulfill the first requirement of the
Cohen collateral order doctrine—“the order [does] not conclusively determine the
disputed question” of the defendant’s entitlement to qualified immunity. Id.
The court reasoned that the “district court’s order does not contain a ruling on
whether the facts alleged would overcome qualified immunity, only that they
were detailed enough to allow the court to rule on any subsequent dispositive
motion.” Id.
      Likewise, in the present case, the district court’s denial of Johns’s motion
is a non-dispositive order that does not finally determine the issue of Johns’s
qualified immunity from suit. Johns argues on appeal that the district court’s
order effectively constitutes a denial of qualified immunity on the pleadings.
However, we reject Johns’s argument. The district court’s order states only that
“the allegations [in Davalos’s complaint] are pled with sufficient particularity to
respond to the defense of qualified immunity, making a Rule 7(a) Reply
unnecessary.” (emphasis added). Thus, the district court did not make a ruling
that the facts alleged in Davalos’s complaint would overcome Johns’s defense of
qualified immunity. Because the district court’s denial of Johns’s motion for a
Rule 7(a) reply does not conclusively determine the disputed question of Johns’s
entitlement to qualified immunity, the court’s order is not an immediately
appealable collateral order.
      For the foregoing reasons, we DISMISS the appeal for lack of jurisdiction.




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