     Case: 10-60265 Document: 00511417727 Page: 1 Date Filed: 03/21/2011




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

                                                 FILED
                                                                           March 21, 2011

                                       No. 10-60265                         Lyle W. Cayce
                                                                                 Clerk

KAREN WINSTEAD,

                                                   Plaintiff - Appellee

v.

RANDY BOX, In his individual capacity,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 1:09-CV-104


Before GARWOOD, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Karen Winstead brought suit against Mississippi Highway Patrolman
Randy Box under 42 U.S.C. § 1983.                The district court entered an order
permitting discovery into facts relevant to the officer’s qualified immunity
defense. Such discovery may be proven necessary, but we conclude that the
district court did not make the required inquiries prior to determining whether
to order such discovery. We VACATE and REMAND.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-60265 Document: 00511417727 Page: 2 Date Filed: 03/21/2011



                                  No. 10-60265

      Winstead claims she was wrongfully arrested and retaliated against when
Officer Box arrested her for suspicion of driving under the influence. She alleges
this was pretext for arresting her based upon the political campaign materials
Officer Box observed in her vehicle.
      Officer Box asserted in his motion for summary judgment that he was
entitled to the defense of qualified immunity. The district court entered an order
staying most discovery pursuant to a local court rule, which states:
      (B) Filing an immunity defense or jurisdictional defense motion
      stays the attorney conference and disclosure requirements and all
      discovery not related to the issue pending the court’s ruling on the
      motion, including any appeal.

      (C) At the time the immunity defense or jurisdictional defense
      motion is filed, the moving party must submit to the magistrate
      judge a proposed order granting the stay but permitting discovery
      relevant only to the defense raised in the motion.
N.D. Miss. Local Unif. Civ. R. 16(b)(3)(B)-(C).
      On February 8, 2010, the magistrate judge stayed all discovery not related
to qualified immunity until such time as the district court ruled on the immunity
defense.   On March 25, the district court interpreted that order as having
“granted leave to engage in discovery related to the issue of immunity only.” In
the same March 25 order, the court set a deadline for discovery “solely
pertaining to the defenses of immunity raised in the defendant’s motion for
summary judgment . . . .” On March 26, Officer Box appealed. The district court
on April 29 entered a stay of discovery pending the resolution of this appeal.
      We normally lack jurisdiction to consider appeals from discovery orders.
Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 (5th Cir. 1995).           An
immediate appeal from qualified immunity-related discovery orders may be
taken, however, on the basis that such orders “are either avoidable or overly




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                                 No. 10-60265

broad.” Gaines v. Davis, 928 F.2d 705, 707 (5th Cir. 1991) (per curiam) (citing
Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir. 1987)).
      We conclude that we have jurisdiction over this qualified immunity-related
discovery order because the authorized discovery may be avoidable. Wicks, 41
F.3d at 994.
      One of the reasons for qualified immunity is to protect a defendant from
the burdens of discovery when the plaintiff has not filed an adequate claim. Id.
Therefore, we have held that discovery “must not proceed until the district court
first finds that the plaintiff’s pleadings assert facts which, if true, would
overcome the defense of qualified immunity.” Id.; see Geter v. Fortenberry, 849
F.2d 1550, 1553-54 (5th Cir. 1988).
      The district court did not make this threshold finding. Instead, after the
magistrate judge stayed all discovery not related to qualified immunity, neither
she nor the district judge ever evaluated whether Winstead’s complaint made
the necessary assertions. As held in Wicks, the district court must determine
whether, assuming the truth of the allegations in the complaint, Winstead has
demonstrated that Officer Box “violated clearly established statutory or
constitutional rights.” Wicks, 41 F.3d at 995.
      Should the district court determine that Winstead’s “complaint alleges
facts to overcome the defense of qualified immunity,” the court may then proceed
“to allow the discovery necessary to clarify those facts upon which the immunity
defense turns.” Id. Should the district court instead hold that the complaint is
insufficient, ordinarily the plaintiff is given an opportunity to amend or
supplement her complaint, in order to state her “best case.” Id. at 997.
      VACATED AND REMANDED.




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