               Case: 17-12185     Date Filed: 01/10/2018     Page: 1 of 4


                                                                 [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                    No. 17-12185
                                Non-Argument Calendar
                              ________________________

                    D.C. Docket No. 8:16-cv-00274-MSS-TBM



ANDREW JOSEPH, JR.,
as natural father, next friend and personal representative
of the Estate of Andrew Joseph, III deceased,

                                                    Plaintiff - Appellee,

versus

DAVID GEE,
in his official capacity as the Sheriff of Hillsborough County, et al.,

                                                   Defendants,


HENRY ECHENIQUE,
in his individual capacity,
MARK CLARK,
in his individual capacity,
STEPHEN JONES,
in his individual capacity,
ADRIAN CHESTER,
in his individual capacity,
              Case: 17-12185     Date Filed: 01/10/2018   Page: 2 of 4




                                                   Defendants - Appellants.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (January 10, 2018)

Before TJOFLAT, WILLIAM PRYOR and JORDAN, Circuit Judges.

PER CURIAM:

      Andrew Joseph, Jr., as personal representative of his deceased son, Andrew

Joseph, III, sued the Florida State Fair Authority, David Gee, in his official

capacity as Sheriff of Hillsborough County, and four officers—Henry Echenique,

Mark Clark, Stephen Jones, and Adrian Chester—in their individual capacities. In

addition to state law claims, Mr. Joseph asserted claims under 42 U.S.C. § 1983 for

violations of his son’s Fourth Amendment rights. Mr. Joseph alleges that the

individual officers violated his son’s civil rights by detaining and forcibly ejecting

him from the Florida State Fair.      According to Mr. Joseph’s allegations, the

officers’ unconstitutional conduct ultimately led to the tragic death of his son, who

was struck by a vehicle while attempting to cross Interstate 4.

      Officers Echenique, Clark, Jones, and Chester moved to dismiss Mr.

Joseph’s second amended complaint, arguing that it failed to state a claim upon

which relief could be granted, and that they were entitled to qualified immunity.

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The officers appeal the district court’s denial of these motions. Upon de novo

review, see Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997), and

after careful consideration of the record and the parties’ briefs, we vacate the

orders denying the officers’ motions to dismiss and remand to the district court.

      The district court’s orders denying the officers’ motions state that the

motions were denied because “[i]t is premature to determine … whether [the

officers] are entitled to Qualified Immunity based on the facts of this case. The

Court finds that discovery is needed to make this determination.” D.E. 112 at 1–2;

D.E. 113 at 1–2. This was error. As we recently explained, the district court’s

order requiring discovery “before the court ruled on the immunity defenses is ...

inconsistent with [our] decisions which establish that immunity is a right not to be

subjected to litigation beyond the point at which immunity is asserted.” Howe v.

City of Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017) (citing Bouchard Transp.

Co. v. Fla. Dep't of Envtl. Protection, 91 F.3d 1445, 1449 (11th Cir. 1996)). See

also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Until this threshold

immunity question is resolved, discovery should not be allowed.”).

      When presented with the officers’ motions to dismiss, both our precedent

and precedent from the Supreme Court instruct the district court to analyze

whether, taking Mr. Joseph’s allegations as true, the second amended complaint

asserted a violation of a clearly established constitutional right. See Chesser v.


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Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001) (“[T]he [qualified immunity] defense

may be raised and considered on a motion to dismiss; the motion will be granted if

the ‘complaint fails to allege the violation of a clearly established constitutional

right.’”) (quoting Williams, 192 F.3d at 1182); Santamorena v. Ga. Military

College, 147 F.3d 1337, 1342 (11th Cir. 1998) (affirming grant of motion to

dismiss on qualified immunity grounds because the “complaint fail[ed] to allege

the violation of a clearly established constitutional right”). See also Siegert v.

Gilley, 500 U.S. 226, 232 (1991) (“A necessary concomitant to the determination

of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at

the time the defendant acted is the determination of whether the plaintiff has

asserted a violation of a constitutional right at all. Decision of this purely legal

question permits courts expeditiously to weed out suits which fail the test without

requiring a defendant who rightly claims qualified immunity to engage in

expensive and time consuming preparation to defend the suit on its merits.”).

Because the district court failed to conduct this analysis, we vacate its orders on the

officers’ motions to dismiss and remand for further proceedings consistent with

this opinion.

      VACATED AND REMANDED.




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