Annette Fulton v. Kenner City, et al

Filing

UNPUBLISHED OPINION FILED. [10-30213 Dismissed for Lack of Jurisdiction] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 11/29/2010 [10-30213]

Annette Fulton v. Kennere: 10-30213 Cas City, et al

Document: 00511284260 Page: 1 Date Filed: 11/04/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 4, 2010 N o . 10-30213 S u m m a r y Calendar Lyle W. Cayce Clerk

A N N E T T E FULTON, P la in t if f ­ A p p e lle e , v. S T E V E CARAWAY, Chief of the Kenner Police Department; PAUL ZENO, J a il Supervisor, D e fe n d a n t s ­ A p p e lla n t s . A N N E T T E FULTON, P la in t if f ­ A p p e lle e , v. S T E V E CARAWAY, Chief; PAUL ZENO, Officer, D e fe n d a n t s ­ A p p e lla n t s .

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:09-CV-3310

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges.

Dockets.Justia.com

Case: 10-30213 Document: 00511284260 Page: 2 Date Filed: 11/04/2010

No. 10-30213 P E R CURIAM:* S t e v e Caraway, Chief of the Kenner Police Department, and Paul Zeno, J a il Supervisor (together, Kenner Appellants) appeal from the United States D is t r ic t Court for the Eastern District of Louisiana's denial of their motion r e q u e s tin g a Rule 7(a) reply from plaintiff­appellee Annette Fulton. We

c o n c lu d e that we do not have jurisdiction over this appeal and therefore dismiss it. F u lt o n sued Caraway, Zeno, and an unidentified "Officer A," along with t h e City of Kenner and the Kenner Police Department, in both state and federal c o u r t. She alleged violations of state and federal law. The case originally filed in state court was removed to federal district court and was later consolidated w it h the near-identical case originally filed in federal district court. The City of K e n n e r , the Kenner Police Department, and Officer A, who has not yet been i d e n tifie d , are not parties to this appeal. In her complaint, Fulton alleged v io la t io n s of the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments of t h e United States Constitution and several provisions of the Louisiana C o n s t it u t io n and Civil Code. Fulton sued pursuant to 42 U.S.C. § 1983 and in v o k e d the supplemental jurisdiction of the district court under 28 U.S.C. § 1367 to hear her state law claims. T h e Kenner Appellants asserted the defense of qualified immunity to F u lt o n 's claims. They then filed a motion for a Rule 7(a) reply and a

m e m o r a n d u m of law in support of that motion, pursuant to a procedure d e v e lo p e d by this court through which the district court may require a plaintiff t o submit detailed allegations that show the plaintiff will be able to overcome the

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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Case: 10-30213 Document: 00511284260 Page: 3 Date Filed: 11/04/2010

No. 10-30213 d e fe n s e of qualified immunity.1 Fulton opposed the motion. Deciding that a r e p ly was unnecessary, the district court denied the motion. fo llo w e d . B e c a u s e the denial of the motion for a Rule 7(a) reply is not a final ju d g m e n t , we must address whether this court has jurisdiction to hear the a p p e a l.2 We have jurisdiction to determine our jurisdiction.3 We requested that t h e parties brief the question of whether the "order denying the motion . . . is a p p e a la b le at this stage of the litigation pursuant to [FED. R. CIV. P.] 54(b), or t h e collateral order doctrine, or whether there exists some other basis of a p p e lla te jurisdiction." T h e Kenner Appellants argue that we have jurisdiction pursuant to 28 U .S .C . § 1291 and the Cohen collateral order doctrine.4 They argue that this a p p e a l falls into the "small class [of orders] which finally determine claims of r ig h t separable from, and collateral to, rights asserted in the action, too im p o r t a n t to be denied review and too independent of the cause itself to require t h a t appellate consideration be deferred until the whole case is adjudicated." 5 T h e y contend that permitting an interlocutory appeal of the district court's d e n ia l of their motion for a Rule 7(a) reply vindicates the Harlow v. Fitzgerald q u a lifie d immunity doctrine6 by ensuring that the issue of qualified immunity w ill be decided at the earliest possible time. The district court's denial of their This appeal

See Reyes v. Sazan, 168 F.3d 158, 159 (5th Cir. 1999); Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc).
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See 28 U.S.C. §§ 1291-1292. Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir. 2010). See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Id. 457 U.S. 800, 807 (1982).

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Case: 10-30213 Document: 00511284260 Page: 4 Date Filed: 11/04/2010

No. 10-30213 m o t io n , they continue, will subject them to discovery, a burden of litigation from w h ic h qualified immunity should protect them.7 They conclude that the order " c le a r ly and finally resolved an important issue separate from the merits of the la w s u it ." W e disagree with the Kenner Appellants' conclusion. The Supreme Court h a s held that even under the required narrow reading of the appealable c o lla t e r a l order doctrine, government officials are permitted to appeal decisions in which the district court denies them qualified immunity.8 The rationale for p e r m it t in g such appeals is that qualified immunity is a defense not only from lia b ilit y , but also from the burdens of litigation.9 When a district court order d e n y in g qualified immunity "turns on an issue of law," the order conclusively d e t e r m in e s that the defendant must bear the burdens of discovery, a decision w h ic h is "conceptually distinct from the merits of the plaintiff's claim" and " w o u ld prove effectively unreviewable on appeal from a final judgment." 1 0 W e unquestionably would have jurisdiction over an appeal of a denial of a motion to dismiss a § 1983 claim on a defense of qualified immunity.1 1 But this c a s e presents a different situation: the Kenner Appellants appeal from a nond is p o s it iv e motion. The Supreme Court requires that a collateral order fulfill t h r e e stringent conditions to be appealable: it must conclusively determine the d is p u t e d question, resolve an important issue completely separate from the m e r it s of the action, and be effectively unreviewable on appeal from a final

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See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Id. at 526-27. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945-46 (2009) (citing Mitchell, 472 U.S. at 526). Id. at 1946. Id.

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Case: 10-30213 Document: 00511284260 Page: 5 Date Filed: 11/04/2010

No. 10-30213 ju d g m e n t .1 2 The denial of the motion for a Rule 7(a) Schultea reply does not fu lfill the first requirement--the order did not conclusively determine the d is p u t e d question. The district court's order does not contain a ruling on

w h e t h e r the facts alleged would overcome qualified immunity, only that they w e r e detailed enough to allow the court to rule on any subsequent dispositive m o t io n . We are unwilling to expand the collateral order doctrine this far. * * *

W e do not have jurisdiction over this appeal; it is therefore DISMISSED.

Martin v. Halliburton, 618 F.3d 476, 482 (5th Cir. 2010) (quoting Will v. Hallock, 546 U.S. 345, 349-50 (2006)).

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