     Case: 18-30126    Document: 00514867978      Page: 1   Date Filed: 03/11/2019




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

                                                                            FILED
                                  No. 18-30126                        March 11, 2019
                                                                       Lyle W. Cayce
ANDREA ARMSTRONG, Executrix of the Estate of Glen Ford,                     Clerk


             Plaintiff–Appellee

v.

DON ASHLEY; GARY ALDERMAN; GARY PITTMAN; EVERETT T.
RUSHING; BILLY LOCKWOOD, wrongly identified as Estate of Billy
Lockwood; FRANK DATCHER; GLYNN MITCHELL; RODNEY PRICE,

             Defendants–Appellants



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
      Glenn Ford was wrongly convicted of murder and spent 30 years in
solitary confinement on death row before being fully exonerated, with all
charges dropped. Ford sued the Defendants-Appellants 1 (as well as other
defendants not included in this appeal), all of whom were law enforcement
officials at the time of Ford’s wrongful conviction, alleging suppression of




      1Don Ashley, Gary Alderman, Gary Pittman, Everett T. Rushing, Billy Lockwood,
Frank Datcher, Glynn Mitchell, and Rodney Price.
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                                       No. 18-30126

evidence, fabrication of witness statements, withholding of exculpatory
evidence, and other violations.
       Ford filed suit in March 2015. The operative First Amended Complaint
was filed on September 8, 2015. Appellants answered the complaint on
December 3, 2015, while other defendants in the initial lawsuit chose to
instead move to dismiss under Federal Rule of Civil Procedure 12(b).
Approximately three months later, on March 16, 2016, the Appellants filed a
Rule 12(b)(6) motion to dismiss the case for failure to state a claim.
Alternatively, they moved for the Appellee to add details to the allegations
pursuant to Federal Rule of Civil Procedure 7(a).
       The district court denied the Rule 12(b)(6) motion for being untimely on
December 28, 2017. 2 The court also denied the alternative relief under Rule
7(a). The Appellants appealed the dismissal of the Rule 12(b)(6) motion on
January 23, 2018.
                                        I.
       The first, and determinative, issue is that of appellate jurisdiction. The
case comes before this court on interlocutory appeal. In deference to the district
court and to district judges’ responsibility to manage trials, interlocutory
appeals are only allowed in limited circumstances because they disrupt the
progress of a trial. Johnson v. Jones, 515 U.S. 304, 309 (1995). Therefore,
“interlocutory appeals–appeals before the end of district court proceedings–are
the exception, not the rule.” Id.
        “[A] decision . . . is appealable if it falls within ‘that small class 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



       2 In contrast, the district court ruled on the merits for the Rule 12(b)(6) motions filed
in a timely manner by the other defendants.
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of the cause itself to require that appellate consideration be deferred until the
whole case is adjudicated.’” Mitchell v. Forsyth, 472 U.S. 511, 524–25 (1985)
(quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
Accordingly, Mitchell held that “a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.”    Id. at 530 (emphasis added). For a decision to be
considered final, and therefore appealable, it must fulfill three conditions laid
out in Mitchell. Id. at 527. First, it must be “effectively unreviewable on appeal
from a final judgment.” Id. Second, it must “conclusively determine the
disputed question.” Id. (citation omitted). Finally, the question at issue must
be a “clai[m] of right separable from, and collateral to, rights asserted in the
action.” Id. (alteration in original) (citation omitted). The appellate court does
not have jurisdiction to evaluate factual disputes. Winfrey v. Pikett, 872 F.3d
640, 643–44 (5th Cir. 2017).
      A decision on qualified immunity can be an appealable final decision,
“but only to the extent that the appeal concerns the purely legal question
whether the defendants are entitled to qualified immunity on the facts[.]”
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). Typically, this
determination is a decision on “whether the federal right allegedly infringed
was clearly established.” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (internal
quotation omitted). If the district court declined to rule on qualified immunity
when it was so obligated, that may also be considered an appealable final
decision. See Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986). However,
“where the district court refuses to rule on a claim of immunity because it has
not been timely presented to the court, Mitchell does not provide for appellate
jurisdiction.” Hernandez v. Brazoria Cty., No. 93-2525, 1994 WL 171620, at *2


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                                     No. 18-30126

(5th Cir. Apr. 26, 1994) (per curiam) (unpublished but precedential); see also
Edwards v. Cass Cty., Tex., 919 F.2d 273, 275 (5th Cir. 1990).
                                           II.
      The Appellants filed a Rule 12(b)(6) motion to dismiss that included an
assertion of qualified immunity. The Appellants argue that in denying the Rule
12(b)(6) motion, the district court made an appealable final legal decision on
qualified immunity. The Appellants base this argument on a statement made
by the district court regarding a possible alternative argument that the
defendants did not raise in their motion – that the Rule 12(b)(6) motion should
instead be considered a Rule 12(c) motion. 3 The district court, in declining to
consider the motion under Rule 12(c), stated that “there are material facts in
dispute and at this stage of the litigation, the Law Enforcement Defendants
are not entitled to a judgment as a matter of law.” Based on this statement,
the Appellants aver that the district court essentially made a final legal
determination that the Appellants were not entitled to qualified immunity.
This final legal determination must be appealable, Appellants maintain,
because the purpose of qualified immunity is to protect the officers from trial,
not only from liability. Mitchell, 472 U.S. 511, 526-27.
      However, the district court specifically stated that it was making the
decision on procedural grounds, rather than legal grounds: “Accordingly, the
Law Enforcement Defendants’ Rule 12(b)(6) Motion to Dismiss is DENIED as
untimely.” The decision therefore is not based on a legal evaluation of the
Appellants’ entitlement to qualified immunity. We take the district court at its
word and decline to hold that the district court inadvertently made a final legal
determination as to whether the Appellants are entitled to qualified immunity.


      3  District courts may consider untimely Rule 12(b)(6) motions as Rule 12(c) motions
(indeed they are sometimes encouraged to do so). See Delhomme v. Caremark Rx Inc., 232
F.R.D. 573, 576 n.2 (N.D. Tex. 2005).
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Accordingly, we note that nothing in the district court’s order bars the
Appellants from asserting qualified immunity by appropriate, timely
procedural vehicle in the future. See Kiser v. Garrett, 67 F.3d 1166, 1169 (5th
Cir. 1995) (“It would be anomalous to conclude that a defendant waives a
qualified immunity defense by dismissing as moot an interlocutory appeal that
the defendant was not required to take in the first place.”).
                                      III.
      Because the district court’s decision on the Rule 12(b)(6) motion was
based on timing rather than a substantive legal disposition regarding qualified
immunity, this court does not have jurisdiction to consider the appeal at this
time. Therefore, we do not find it necessary to consider the alternative
arguments presented by the Appellants. We DISMISS this appeal for lack of
appellate jurisdiction.




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