                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-17560
                           ________________________

                     D.C. Docket No. 3:15-cv-01184-TJC-JBT

R.F.J.,
Estate of deceased minor child,
R.F.,
Estate of deceased minor child,
J.F.,
Estate of deceased minor child,
BRIAN CABREY,
attorney ad litem and next friend of H.F., a minor child,
RICHARD FOWLER,
individually, et al.,

                                                             Plaintiffs - Appellees,

versus


FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
a governmental agency of the State of Florida,

                                                                        Defendant,

BRUCE PERRY,
REGINALD BRADY,
Individually,

                                                            Defendants-Appellants.
                                ________________________

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

                                        (August 7, 2018)

Before JORDAN and ROSENBAUM, Circuit Judges, and MARTINEZ, * District
Judge.

PER CURIAM:
       Defendants Bruce Perry and Reginald Brady appeal the district court’s

conversion of their motions to dismiss on qualified-immunity grounds to motions

for summary judgment. They also appeal the district court’s deferral of ruling

upon those motions until after the parties complete discovery. For the reasons that

follow, we vacate the district court’s order deferring its ruling on Brady’s and

Perry’s motions for qualified immunity and remand for further proceedings.

                                                 I. 1

       On June 17, 2014, as part of his official duties, Defendant-Appellant

Reginald Brady, a Child Protective Investigator with Defendant-Appellant Florida

Department of Children and Families (“DCF”), arrived at the Jacksonville, Florida,

home where Sheila Swearingen was staying with her four grandchildren. He found

       *
          Honorable Jose E. Martinez, United States District Judge for the Southern District of
Florida, sitting by designation.
       1
          For purposes of our review, we accept as true the allegations in the operative complaint
and construe them in the light most favorable to the plaintiff, since Brady and Perry challenge
the district court’s failure to rule on their motion to dismiss. See Ray v. Spirit Airlines, Inc., 836
F.3d 1340, 1347 (11th Cir. 2016).
                                                  2
it in flames. Worse, R.F.J., R.F., J.F., and H.F.—four siblings between the ages of

ten months and six years—along with Swearingen—were in the house when it

caught fire. Tragically, three of those children, R.F.J., R.F., and J.F. perished in

the fire alongside Swearingen. The fourth sibling, H.F., narrowly escaped but

suffered serious injuries.

       DCF’s role in how the children came to be with Swearingen lies at the heart

of this lawsuit, so we take a moment to explain. Earlier that day, Brady—without

first confirming that the home at which Swearingen was staying would be a safe

environment for the children—had advised Swearingen that she could take

temporary custody of her grandchildren from the grandchildren’s grandfather,

Clayton Woods. Woods, in turn, had had temporary custody of the grandchildren

because both Jennifer Smith and Richard Fowler, the children’s parents, were in

jail at the time.

       Between Brady’s authorization of Swearingen’s temporary custody on the

morning of June 17 and Brady’s visit later that day to where Swearingen was

staying, Brady attended a DCF meeting, along with his supervisor, Defendant-

Appellant Child Protective Investigator Supervisor Bruce Perry, and other DCF

staff at about 1:45 p.m. During this meeting, Defendants discussed the fact that

Swearingen had been convicted years earlier of having sex with a minor and that




                                         3
she was a registered sex offender in the State of Florida. Nevertheless, Defendants

continued to allow the children to remain in temporary custody with Swearingen.

      As it turns out, the publicly available criminal records concerning

Swearingen’s conviction revealed that she was adjudicated not guilty by reason of

insanity after she violated her sex-offender probation. And Swearingen’s publicly

available criminal-case file contained two letters that noted Swearingen’s history

of treatment for schizophrenia, undifferentiated type. Among other remarks, these

letters stated that Swearingen had “a long history of emotional disturbance and

[was then] under care for treatment of Schizophrenic Disorder with anti-psychotic

medication to control side effects.”

      Returning to the events of June 17, after the DCF meeting and before the fire

occurred, Swearingen tried to contact Brady twice on his cell phone. Later, at

roughly 5:40 p.m., R.F.J., who was four years old at the time, was playing with a

lighter and started the house fire. Brady showed up at the residence an hour and

forty-five minutes after that and discovered the fire. By that point, it was too late

to help R.F.J., R.F., J.F., and Swearingen, and H.F. had suffered injuries before she

could escape the fire.

                                         II.

      Based on these events, Plaintiffs—the estates of R.F.J., R.F., and J.F., along

with H.F. and the children’s father (together, “Plaintiffs”)—filed suit against DCF,


                                         4
Brady, and Perry. Plaintiffs assert claims pursuant to 42 U.S.C. § 1983, the Florida

Wrongful Death Act, and Florida common law. With respect to their § 1983 claim,

Plaintiffs allege that each child had a “cognizable liberty interest under the

Fourteenth Amendment to be free from unnecessary pain.” Plaintiffs aver that

Brady and Perry were indifferent to those rights because they knew it was too risky

to put the children with Swearingen, but they did it, anyway. In addition, Plaintiffs

contend that Brady and Perry had a constitutional duty to prevent harm to the

children by placing them with a responsible adult.

      After Plaintiffs filed an amended complaint, Perry and Brady separately

moved to dismiss the claims against them on the basis of qualified immunity. In

response, Plaintiffs filed their Second Amended Complaint. Perry and Brady again

separately moved to dismiss, contending that qualified immunity shielded them

from Plaintiffs’ suit.

      On April 6, 2016, the district court referred Brady’s and Perry’s motions to a

magistrate judge for a Report and Recommendation.            The magistrate judge

recommended finding that Brady and Perry are entitled to qualified immunity.

      Both sides filed objections to the Report and Recommendation, and the

district court conducted a hearing. At the hearing, Plaintiffs made a number of

factual assertions that were absent from the Second Amended Complaint. Some

appeared to be material. For example, Plaintiffs asserted that DCF had interviewed


                                         5
Swearingen at some point before placing the children with her. Plaintiffs also

claimed that DCF’s placement of the children with Swearingen went against the

parents’ instructions because the parents believed she was incapable of caring for

them. The court ended the hearing by directing the parties to engage in settlement

discussions.

       Those talks quickly faltered.           The district court subsequently converted

Brady’s and Perry’s motions to dismiss into motions for summary judgment. But

the court did not rule on the motions. Instead, it directed the parties to commence

discovery so that the court could have a full record before deciding whether Brady

or Perry, or both, are entitled to qualified immunity.

       Perry and Brady now appeal that ruling. In the meantime, while this appeal

has been pending, Plaintiffs—armed with new facts gleaned from discovery—

sought leave to file a Third Amended Complaint. The district court deferred ruling

on that motion, stating that “[i]f Plaintiffs wish to bring . . . this motion for leave

to amend to the Eleventh Circuit’s attention, they can do so.”


                                               III.

       Brady and Perry argue that the district court erred by deferring its ruling on

their qualified-immunity defenses until after discovery is completed. 2 We agree.


       2
        Plaintiffs contend that we lack jurisdiction to review the district court’s order because it
was not a final, appealable order. However, a panel from this Court preliminary concluded that
                                                 6
       Qualified immunity is not a last exit before liability. Instead, qualified

immunity is a right to be free from litigation altogether once the defense is

established. See Howe v. City of Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017)

(“[I]mmunity is a right not to be subjected to litigation beyond the point at which

immunity is asserted.”); Bouchard Transp. Co. v. Fla. Dep’t of Envtl. Prot., 91

F.3d 1445, 1448 (11th Cir. 1996). Otherwise, parties could be required to expend

significant time, money, and energy only to go 90 miles down the road of a dead-

end drive. See Simmons v. Bradshaw, 879 F.3d 1157, 1162 (11th Cir. 2018)

(“Qualified immunity is . . . ‘effectively lost if a case is erroneously permitted to

go to trial.’”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); see also

Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly have stressed the

importance of resolving immunity questions at the earliest possible stage in

litigation.”) (collecting cases).

       The district court’s deferral of its decision violates these principles. And it

is not in keeping with our prior precedent in Howe. Like in this case, the district

court in Howe delayed ruling on the officers’ qualified immunity and directed them




we have jurisdiction. And we see no reason to depart from that conclusion. Rather, it is well-
settled that we have jurisdiction to review the district court’s order under the “collateral order”
doctrine. See, e.g., Howe v. City of Enterprise, 861 F.3d 1300, 1302 (11th Cir. 2017) (collecting
cases and deciding that the district court’s order deferring ruling on defendants’ immunity
defense was reviewable).


                                                7
to commence discovery. Howe, 861 F.3d at 1301. We vacated that order and

directed the district court to resolve the immunity defense “before requiring that

the parties litigate Howe’s claims any further.” Id. at 1303.

       Although we understand the district court’s decision below, given the flurry

of facts from outside the complaint, Brady and Perry are entitled to a ruling sooner

rather than later.      Consequently, we must vacate the district court’s order of

November 18, 2016, and remand for the district court to take one of two actions:

(1) enter a substantive ruling on Brady’s and Perry’s pending motion to dismiss or

(2) grant Plaintiffs’ motion for leave to file a third amended complaint 3 and deny

as moot Brady’s and Perry’s pending motion to dismiss. Should the district court

make the latter choice and should Brady and Perry again move to dismiss on

qualified-immunity grounds, the district court should resolve those motions before

requiring the parties to litigate the claims any further. See Howe, 861 F.3d at 1303

n.1 (directing the district court to consider qualified immunity after the plaintiff

filed his amended complaint and stating that “responding to Howe’s second

amended complaint is not a burden of litigation from which the immunity doctrines

protect[s]” defendants).

                                               IV.


       3
           We do not opine on how the district court should rule on Plaintiffs’ motion for leave to
file a third amended complaint. Rather, we note that should the district court decide to grant that
motion, Brady’s and Perry’s pending motion to dismiss would be moot.
                                                8
      For the foregoing reasons, we vacate the district court’s order and remand

for proceedings consistent with this order.

      VACATED and REMANDED.




                                          9
