     Case: 16-50393      Document: 00513755576         Page: 1    Date Filed: 11/10/2016




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

                                    No. 16-50393
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      November 10, 2016
                                                                           Lyle W. Cayce
SAMUEL RANDLE,                                                                  Clerk


              Plaintiff - Appellee

v.

THOMAS LOCKWOOD; LIEUTENANT GENE RHODES; TERRANCE
GUDE; TIM WINN; OFFICER FNU ALLEN; SERGEANT VIRGINIA
JEFFERSON; SERGEANT WAYLAND EDWARDS; OFFICER FNU LE;
OFFICER FNU VIAL; OFFICER FNU COTTON; OFFICER FNU
BURLESON; SERGEANT FNU GRAVES; OFFICER FNU WILLETT;
OFFICER E. NEHRING; OFFICER FNU WILEY; OFFICER FNU
LABELLA; NURSE FNU NICKI,

              Defendants - Appellants




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:15-CV-84


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50393
       Plaintiff–Appellee Samuel Randle, a former county jail detainee, filed
suit under 42 U.S.C. § 1983 alleging constitutional violations stemming from
a medical condition he suffered while detained. Defendants–Appellants, a
group of jailers, moved to dismiss on the basis of qualified immunity and the
district court denied their motions. Because the district court failed to address
the jailers’ qualified immunity defense in its denial, we REVERSE the district
court’s order to the extent it failed to address this defense and REMAND for
reconsideration of whether each defendant is entitled to qualified immunity.
                          I. FACTS AND PROCEEDINGS
       On March 13, 2015, Plaintiff–Appellee Samuel Randle filed the instant
action under 42 U.S.C. § 1983 against Defendants–Appellants, 17 individual
members of the Limestone County Jail staff (the jailers), alleging that while
he was detained at the jail, the jailers were deliberately indifferent to his
serious medical needs, in violation of the Fourteenth Amendment. 1 Randle
alleged that, as a side effect of medication prescribed to him at the jail, he
suffered from priapism 2 while detained, which ultimately rendered him
permanently impotent. 3




       1 In addition to his claim against the jailers, Randle also brought claims against
Limestone County, the jail physician who treated him, the physician’s medical practice group,
and a nurse employed by the Limestone County Jail. However, none of those defendants is
a party to this appeal.
       2 Priapism is a “[p]ersistent erection of the penis, accompanied by pain and

tenderness, resulting from a pathologic condition rather than sexual desire.” Priapism,
STEDMAN’S MEDICAL DICTIONARY 720430, Westlaw (database updated Nov. 2014). Priapism
is a known side effect of trazodone.
       3 The original complaint referred to several of the jailers as “John Doe” because Randle

did not know their names at the time of filing. After referral from the district court, a
magistrate judge granted Randle expedited discovery of all jail records related to his
detention in order to identify the true names of these defendants, and Randle subsequently
amended his complaint to include these names. The records also revealed that the jail had
an additional nurse on staff during Randle’s detention, and Randle’s amended complaint
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                                       No. 16-50393
       On May 8, 2015, in two separate motions, 4 the jailers moved to dismiss
for failure to state a claim upon which relief could be granted. See Fed. R. Civ.
P. 12(b)(6). Both motions argued that the jailers were “entitled to qualified
immunity.” They also claimed that a “[h]eightened pleading” standard applies
to a plaintiff’s complaint when defendants raise qualified immunity and that,
under this standard, Randle failed to state a claim for deliberate indifference
to a serious medical need.           On January 28, 2016, the magistrate judge
recommended denying both motions to dismiss. After recognizing that the
jailers raised a qualified immunity defense, the magistrate judge’s report
asserted that “there is no plausible basis for [the jailers’] continued insistence
on requiring heightened pleading in the qualified immunity context.” The
report then cursorily concluded that Randle had sufficiently pleaded a § 1983
claim and stated that “[Federal] Rule [of Civil Procedure] 8(a)(2) does not
contemplate a court’s passing on the merits of a litigant’s claim at the pleading
stage,” quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 585 (2007). Without
further explanation, the report recommended the motions to dismiss be denied.
       The jailers objected to the magistrate judge’s report and argued, among
other things, that the magistrate judge had applied the wrong pleading
standard to Randle’s claim. They asserted that by virtue of their qualified
immunity defense, Randle faced a “[h]eightened pleading” standard. They
urged that “applying the correct standard shows that the [jailers] [we]re
entitled to dismissal on qualified immunity grounds.” The jailers also argued



added this nurse as a defendant. Other than this limited discovery, no discovery has taken
place in this case.
        4 One defendant filed her motion to dismiss separately from the other jailers. The

magistrate judge, and later the district court, considered the two motions together because
of the similarity of Randle’s allegations with respect to the single defendant and the rest of
the jailers and the fact that the two motions to dismiss were nearly identical.
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                                  No. 16-50393
that each jailer’s entitlement to qualified immunity must be considered on an
individual basis rather than collectively. On March 31, 2016, the district court
issued an order rejecting all of the jailers’ objections. The district court first
concluded that a heightened pleading standard did not apply to Randle’s
claims. The district court next overruled the jailers’ objection that they were
entitled to qualified immunity because this objection “hinge[d] on the
assumption that the Magistrate Judge applied the wrong pleading standard,
which he did not.” The district court stated it was overruling the jailers’
qualified immunity objection “because Randle pled factual allegations that
raise a right to relief above the speculative level.”          The district court
accordingly accepted the magistrate judge’s report and recommendation in full
and ordered that the jailers’ motions to dismiss be denied. The jailers timely
appealed, arguing that they are entitled to qualified immunity.
    II. QUALIFIED IMMUNITY MUST BE DECIDED AS EARLY AS
                                 POSSIBLE
      As an initial matter, we establish our jurisdiction over this appeal. The
action before us is an interlocutory appeal from the district court’s denial of
two motions to dismiss on qualified immunity grounds. A denial of qualified
immunity, as well as a failure to address the issue of qualified immunity, is
immediately appealable “[b]ecause immunity is ‘effectively lost if a case is
erroneously permitted to go to trial.’” Backe v. LeBlanc, 691 F.3d 645, 648 (5th
Cir. 2012) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985)). But our
jurisdiction of this appeal is limited to de novo review of the “purely legal
question of whether ‘the district court erred in concluding as a matter of law
that [the jailers] are not entitled to qualified immunity on a given set of facts.’”
Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (alteration omitted)
(quoting Kinney v. Weaver, 367 F.3d 337, 347–48 (5th Cir. 2004) (en banc)).

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                                  No. 16-50393
Our jurisdiction does not extend to factual disputes and we must accept all of
Randle’s well-pleaded factual allegations as true and draw all reasonable
inferences in his favor. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)
(en banc).   Neither party disputes the scope of our jurisdiction over this
interlocutory appeal. With these limits in mind we turn to the merits.
      Qualified    immunity     shields       “government    officials   performing
discretionary functions” from civil liability for claims under federal law
“insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Kinney,
367 F.3d at 349 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“[Q]ualified immunity constitutes an ‘immunity from suit rather than a mere
defense to liability.’” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th
Cir. 2002) (en banc) (per curiam) (quoting Mitchell, 472 U.S. at 526).
Accordingly, “[q]ualified immunity questions should be resolved ‘at the earliest
possible stage in litigation,” usually before discovery. Porter v. Epps, 659 F.3d
440, 445 (5th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232
(2009)); see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citing cases in
which this instruction has been given). Resolving the applicability of qualified
immunity as early as possible serves to protect officials not only from
unwarranted liability but also from “costly, time-consuming, and intrusive”
pre-trial discovery. Backe, 691 F.3d at 648.
      But here, when the district court denied the jailers’ motions to dismiss,
it did not determine the applicability of the jailers’ asserted qualified immunity
defense. Rather the district court focused on the jailers’ argument that a
heightened pleading standard applied to Randle’s claims, and, after explaining
that such a standard didn’t apply, concluded that Randle sufficiently pleaded
his claims and thus the motions to dismiss should be denied. The district
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                                        No. 16-50393
court’s sole mention of the issue of qualified immunity was to say that the
jailers’ argument on this point was rendered moot because no heightened
pleading standard applied to Randle’s claims. Likewise, the magistrate judge’s
report—adopted in full by the district court—also perfunctorily dismissed the
jailers’ asserted qualified immunity defense after concluding that Randle had
satisfied his pleading burden.
       The district court’s failure to address the question of qualified immunity
violated the tenet that “[q]ualified immunity questions should be resolved ‘at
the earliest possible stage in the litigation.’” Porter, 659 F.3d at 445 (quoting
Pearson, 555 U.S. at 232). Regardless of the pleading standard applicable to
Randle’s claims, the district court was required to address whether the jailers
were entitled to qualified immunity because the jailers asserted this defense
in both their motions to dismiss and their objections to the magistrate judge’s
report and recommendation. By failing to address qualified immunity, the
district court’s order undercuts the doctrine of qualified immunity’s goal of
shielding public officials from “unwarranted demands customarily imposed
upon those defending a long drawn out lawsuit.” Hare v. City of Corinth, 135
F.3d 320, 325 (5th Cir. 1998) (quoting Siegert v. Gilley, 500 U.S. 226, 232
(1991)).    As a result, the jailers will likely be exposed to “costly, time-
consuming, and intrusive” pre-trial discovery before Randle is required to
demonstrate that his allegations defeat the jailers’ qualified immunity
defense. 5 Backe, 691 F.3d at 648. For these reasons, we conclude that the




       5 While the district court’s order did not explicitly allow any discovery, discovery is the
next logical step in the litigation process following the denial of a motion to dismiss. And the
magistrate judge’s report explicitly references the need for discovery before “passing on the
merits” of Randle’s claim. Therefore the district court’s denial of the motions to dismiss, if
left undisturbed, is likely to lead to discovery.
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                                       No. 16-50393
district court erred by failing to address the jailers’ qualified immunity defense
when denying their motions to dismiss. 6
       Having concluded that the district court erred by denying the jailers’
motions to dismiss without addressing their defense of qualified immunity, we
now decline to decide the applicability of qualified immunity in the first
instance on appeal. “It is the general rule . . . that a federal appellate court
does not consider an issue not passed upon below.” Humphries v. Elliot Co.,
760 F.3d 414, 418 (5th Cir. 2014) (quoting Singleton v. Wulff, 428 U.S. 106, 120
(1976)). The district court is best equipped to assess in the first instance
whether the jailers are entitled to qualified immunity, as well as the corollary
question of whether limited discovery is necessary to determine whether any
or all of the jailers are entitled to qualified immunity. We leave it to the district
court to consider in the first instance whether each jailer is entitled to qualified
immunity. 7 See Zapata v. Melson, 750 F.3d 481, 486 n.3 (5th Cir. 2014)
(declining to rule on whether defendants were entitled to qualified immunity




       6  Nor does the district court’s order satisfy the narrow exception to the general rule
that qualified immunity should be decided as early in the litigation as possible. Under this
exception, “a district court may defer its qualified immunity ruling if further factual
development is necessary to ascertain the availability of [the qualified immunity] defense.”
Hinojosa v. Livingston, 807 F.3d 657, 664 (5th Cir. 2015) (quoting Backe, 691 F.3d at 648).
But in order to properly defer the decision on qualified immunity, the district court must
follow the “careful” two-step procedure that we have established. Id. (quoting Backe, 691
F.3d at 648). First, it must “determine ‘that the plaintiff’s pleadings assert facts which, if
true, would overcome the defense of qualified immunity.” Id. (quoting Backe, 691 F.3d at
648). Second, if the district court finds a plaintiff has so pleaded, it can then “defer its
qualified immunity ruling and order limited discovery if ‘the court remains unable to rule on
the immunity defense without further clarification of the facts.’” Id. (quoting Backe, 691
F.3d at 648). Here, the district court did not complete either step of this procedure.
        7 We note that on remand, each defendant’s entitlement to qualified immunity must

be considered on an individual basis. See Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir.
2007).
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                                 No. 16-50393
when the district court had failed to do so); Helton v. Clements, 787 F.2d 1016,
1017 (5th Cir. 1986) (per curiam) (same).
                             III. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s order to the
extent it failed to address qualified immunity and REMAND to the district
court for reconsideration of whether each defendant is entitled to qualified
immunity




                                       8
