ADELSHEIMER v. CARROLL COUNTY MISSISSIPPI 100 (2022)

ORDER

This cause comes before the court on its own motion, directing that, after the agreed period of qualified immunity discovery in this case, defendants refile their summary judgment motion in order to bring it into compliance with the requirements of Fed. R. Civ. P. 56(c). This court will also use this order as an opportunity to announce certain changes in the handling of qualified immunity motions in this chambers, to account for the Fifth Circuit's recent decision in Carswell v. Camp, 37 F.4th 1062, 1068 (5th Cir. 2022).

In its June 17, 2022 decision in Carswell, a Fifth Circuit panel held that qualified immunity defendants in this circuit have the right to obtain an early ruling on any Rule 12 motion to dismiss which they file, even before discovery has been conducted. In so ruling, the Carswell panel noted that pre-existing Fifth Circuit law had granted district courts discretion to defer ruling on qualified immunity motions until after a limited period of qualified immunity discovery, in cases where they concluded that such discovery was necessary to make a correct ruling. Specifically, the Carswell panel noted that:

For example, we once authorized a “narrow exception to the general rule that qualified immunity should be decided as early in the litigation as possible.” Randle v. Lockwood, 666 F. App'x 333, 336 n.6 (5th Cir. 2016) (per curiam); see also Lion Boulos v. Wilson, 834 F.2d 504, 508–09 (5th Cir. 1987) (first articulating this exception). We described that “narrow exception” as “a careful procedure,” which permitted a district court to “defer its qualified immunity ruling if further factual development is necessary to ascertain the availability of that defense.” Zapata, 750 F.3d at 485 (quoting Backe, 691 F.3d at 648). We required the district court to first find that the plaintiff has pleaded “facts which, if true, would overcome the defense of qualified immunity.” Ibid. (quotation omitted). If it still found itself “unable to rule on the immunity defense without further clarification of the facts,” ibid. (quotation omitted), then we allowed the district court to order discovery “narrowly tailored to uncover only those facts needed to rule on the immunity claim,” Wicks, 41 F.3d at 994 (quoting Lion Boulos, 834 F.2d at 507–08).

Carswell, 37 F.4th at 1066.

In finding that this precedent had been overruled, the Carswell panel wrote that:

Call it “careful,” or call it “narrow”; either way, today we call Lion Boulos and its progeny overruled. The Supreme Court has now made clear that a plaintiff asserting constitutional claims against an officer must survive the motion to dismiss (and the qualified immunity defense) without any discovery. Our prior decisions to the contrary are overruled. See In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021) (We must declare circuit precedent overruled where “a former panel's decision has fallen unequivocally out of step with some intervening change in the law.”).

Id.

In so ruling, the Fifth Circuit appeared to place primary weight upon the U.S. Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). In Ashcroft, the district court gave the plaintiff discovery before ruling on the officials’ motion to dismiss based on qualified immunity. See id. at 670. The Supreme Court reversed, holding that “the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process.” Id. at 684–85. This court notes that Ashcroft was a very prominent decision, and yet the Fifth Circuit continued to apply Lion Boulos and its progeny for well over a decade after Ashcroft was decided. See, e.g. Hobbs v. Warren, 838 F. App'x 881, 883 (5th Cir. 2021). This arguably suggests that there are some Fifth Circuit judges who do not believe that Ashcroft served to establish a blanket rule depriving district judges of the discretion to defer qualified immunity rulings until after discovery, and it at least seems possible that the full Fifth Circuit will consider this matter en banc.

Barring some indication by the Fifth Circuit to the contrary, Carswell will, of course, be fully applied by this court. That being the case, any defendant who files a qualified immunity motion in the context of a Rule 12 motion to dismiss will obtain a ruling on that motion from this court, which he may then appeal to the Fifth Circuit if desired. Assuming that the Fifth Circuit affirms a denial of qualified immunity by this court, it will then presumably remand for discovery, after which the parties may file their summary judgment motions. This court notes that nothing in the law prohibits a defendant from appealing a second denial of qualified immunity on summary judgment, even though his Rule 12 qualified immunity motion was previously denied. To the contrary, the U.S. Supreme Court has plainly held that a “defendant's immediate appeal of an unfavorable qualified-immunity ruling on a motion to dismiss does not deprive the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment.” Behrens v. Pelletier, 516 U.S. 299, 299, 116 S. Ct. 834, 835 (1996).

This court can envision a scenario developing in which no robustly litigated § 1983 action is deemed complete without not one, but two, qualified immunity appeals to the Fifth Circuit, all before the district court even begins to consider the claims against the municipal and other defendants who are not entitled to assert qualified immunity defenses. This court hopes that this does not come to pass, but it fears that the Carswell framework will prove to be an unwieldy one.

This court believes that this circuit was well served by the “old” law in this context, which trusted district courts to decide whether the qualified immunity issues before them were best decided under Rule 12 as a matter of law, or under Rule 56 following a limited and expedited period of discovery. In so stating, this court notes its belief that most district judges who elect for discovery are not interested in shirking their responsibility to give defendants an early ruling on their qualified immunity motions; they simply wish to reach a correct result in the cases before them. It is much easier for district courts to have confidence that they are doing so if they have at least a basic knowledge of the relevant facts of the case. This court notes that, sometimes, strong plaintiffs are represented by lawyers who fail to do as thorough a job as they might in drafting the complaint and/or researching law “clearly establishing” a constitutional violation. By ruling on qualified immunity motions after at least some discovery, district courts are hopefully able to gain a clearer picture regarding how strong a factual case they have before them, and not merely how proficient the parties’ lawyers are.

This court further believes that, while qualified immunity defendants may welcome the Fifth Circuit's decision in Carswell, it may backfire on them in certain cases. Indeed, this court suspects that the Fifth Circuit will quickly tire of hearing two qualified immunity appeals per case (if such occurs), and it may well place the burden upon defendants to demonstrate that separate Rule 12 and Rule 56 qualified immunity motions were strictly necessary. In this event, defendants who choose to assert qualified immunity defenses in the context of Rule 12 motions to dismiss may find that they are unable to assert their best qualified immunity arguments, since those arguments often depend upon helpful facts in the record which cannot be cited in a Rule 12 motion based on the pleadings.

In so stating, this court notes that the Fifth Circuit held in Carswell that:

When defendants assert qualified immunity in a motion to dismiss, the district court may not defer ruling on that assertion. It may not permit discovery—“cabined or otherwise”—against immunity-asserting defendants before it has determined plaintiffs have pleaded facts sufficient to overcome the defense.

Carswell, 37 F.4th at 1067. In the court's view, the key words here are “pleaded facts,” since that is the relevant issue in the Rule 12 context. If a defendant believes that the facts alleged in the complaint cannot withstand the harsh light of discovery, then that is something which he may not assert in a Rule 12 motion to dismiss, but only a Rule 56 summary judgment motion. This court suspects that some defense counsel will wish to take the new ruling in Carswell “out for a spin” and accordingly file Rule 12 motions to dismiss simply because the Fifth Circuit has told them they have a right to do so. It seems possible, however, that some defendants will later regret having done so, if it is determined that they had no reasonable basis for questioning the sufficiency of the allegations of the complaint and should have instead litigated qualified immunity issues in the context of a summary judgment motion following discovery.

That brings this court to the facts of this case, which presents qualified immunity issues only tangentially related to those in Carswell, but which nevertheless illustrate some points of importance in this context. In this case, which arises out of the suicide of an inmate at a county jail, plaintiff alleges in her complaint that “Sheriff Walker also knew that Philip E. Adelsheimer was a danger to himself and that he should have been placed on suicide watch.” [Complaint at 2]. In asserting qualified immunity, defendants filed a summary judgment motion in which they alleged that “plaintiff has no evidence that Defendants Clint Walker, Sheriff of Carroll County, Mississippi, or any other defendant knew or should have known that Philip Adelsheimer was a suicide risk.” It was defendants’ choice to file a summary judgment motion rather than a motion to dismiss, and their arguments about what the plaintiff “has evidence” of (rather than what she alleges) is clearly one which is appropriately raised in a summary judgment brief and not a motion to dismiss. Moreover, defendants have since conceded that qualified immunity-related discovery is needed, and, without question, evidence developed in such discovery may only be presented in a summary judgment motion, and not a motion to dismiss. It is thus clear that, at this juncture, a summary judgment motion is the proper vehicle in which to resolve the qualified immunity issues in this case.

Given that defendants now concede that qualified immunity-related discovery is required, it would have been preferable for them to wait and see what that discovery revealed before making representations to this court in a summary judgment brief about what plaintiff is or is not able to prove. Regardless of whether this was strictly required, it is clear that, in choosing to file a summary judgment motion, defendants were required to follow the requirements of the Federal Rules of Civil Procedure relating to such motions. In this vein, Rule 56(c) provides that:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Id.

In this case, one key fact which defendants argue cannot be “genuinely disputed” is that Sheriff Walker lacked knowledge of Adelsheimer's suicidal tendencies. In so asserting in their summary judgment brief, Rule 56(c) required defendants to cite “to particular parts of materials in the record, including depositions, documents” or other admissible summary judgment evidence. This court cannot simply take their word for it. In so stating, this court emphasizes that the mere fact that a defendant is asserting a qualified immunity defense entitles him to no more lenient standards when asserting a summary judgment motion under Rule 56. The U.S. Supreme Court made this clear in Tolan v. Cotton, 572 U.S. 650, 660, 134 S. Ct. 1861, 1868 (2014), where it wrote that:

In holding that Cotton's actions did not violate clearly established law, the Fifth Circuit failed to view the evidence at summary judgment in the light most favorable to Tolan with respect to the central facts of this case. By failing to credit evidence that contradicted some of its key factual conclusions, the court improperly “weigh[ed] the evidence” and resolved disputed issues in favor of the moving party.

Tolan, 572 U.S. at 657.

Tolan makes it clear that there is no separate Rule 56 for qualified immunity defendants and other civil defendants and that, in all cases, this court is required to view the summary judgment facts in the light most favorable to the plaintiff, as the non-moving party. This is true even when there are, in fact, facts in the record, such as deposition testimony, which support defendant's theory of the case.¹ In this case, defendants submitted their summary judgment arguments before there were any relevant facts in the record at all, and their briefing is replete with bare assertions about what the plaintiff is unable to prove, with no citations to the record whatsoever. For example, defendants argue that:

Plaintiff has no evidence that Defendants Clint Walker, Sheriff of Carroll County, Mississippi, or any other defendant knew or should have known that Philip Adelsheimer was a consistent denial of any suicidal tendencies or ideations. Moreover, his record is bereft of any reference of any kind or character to any mental infirmity or condition which might cause or contribute to his suicide. In short, neither Sheriff Walker nor Warden Smith had any knowledge or information whatsoever which suggested that Adelsheimer was a suicide risk. Having no such knowledge, there was literally nothing for them to “effectively disregard”. It follows that Plaintiff cannot meet her burden of proving deliberate indifference on the parts of Sheriff Walker and/or Warden Smith, and her Eighth Amendment claim must fail. These two officials are entitled to summary judgment based upon their respective qualified immunity. * * *

Plaintiff has no evidence that Defendants Clint Walker, Sheriff of Carroll County, Mississippi, or any other defendant knew or should have known that Philip Adelsheimer was a suicide risk. Fifth Circuit law is clear that Plaintiff must prove specific knowledge on the part of defendants Walker and/or Smith that Adelsheimer was a clear threat to himself. His need for protection against his own suicide must be so clear and unambiguous that every reasonable officer would understand that failure to take protective measures to prevent this suicide would constitute a violation of the law. Plaintiff simply cannot prove this.

[Brief at 7-10].

This court regards this argument as constituting a clear violation of Rule 56(c), but it has no interest in punishing defendants for this violation. This court simply wishes to make an informed ruling based upon proper briefing, and it accordingly directs defendants to submit, after the limited period of qualified immunity discovery is complete, an amended motion for summary judgment which complies with the requirements of Rule 56(c). This court notes for the record that it does not suspect that defendants or their counsel are mis-representing the record in this case, and it will not be at all surprised if discovery backs up the contentions which they made in their briefing. This court simply cannot prejudge this matter without proof, however. Defendants are arguably able to assert certain strong qualified immunity arguments in this case, but it is essential that they back up these arguments with competent summary judgment evidence. This court's ruling today simply allows them to do so.

In light of the foregoing, it is ordered that defendants file an amended motion for summary judgment after the agreed period of qualified immunity-related discovery in this case. Plaintiff's motion to continue her response to the summary judgment motion [34-1] is dismissed as moot.

SO ORDERED, this the 4th day of November, 2022.

FOOTNOTES

1.   This court notes that Tolan was decided after Ashcroft, which makes clear that, even after that decision, the Supreme Court does not dispute that some qualified immunity cases are appropriately decided in the context of a Rule 56 motion for summary judgment, not a Rule 12 motion to dismiss.

Michael P. Mills, UNITED STATES DISTRICT COURT JUDGE