Armstrong v. Texas State Bd. of Barber Examiners, 93-9095
| Decision Date | 06 September 1994 |
| Docket Number | No. 93-9095,93-9095 |
| Citation | 30 F.3d 643 |
| Parties | Louie ARMSTRONG, Plaintiff-Appellee, v. TEXAS STATE BOARD OF BARBER EXAMINERS, et al., Defendants, William E. Maddox, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lori Bien, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellants.
William Morris Lamoreaux, Dallas, TX, for appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before JOLLY, SMITH, and WIENER, Circuit Judges.
This action was filed in 1989 by Louie Armstrong alleging various causes of action relating to the termination of his employment with the Texas State Board of Barber Examiners. In lieu of an answer, the defendants filed a motion to dismiss based, inter alia, on qualified immunity. The motion was granted in part but was denied as to the defense of qualified immunity. According to the district court docket sheet, there was no activity in the case until 1992 when the parties announced that the case had settled and it was dismissed. Several months later, however, Armstrong, asserting that the settlement had collapsed, moved to reopen the case and to amend his complaint. Thereafter, the parties entered a scheduling order, and Armstrong moved to compel the defendants to respond to his discovery requests. The defendants then filed a motion for summary judgment based on qualified immunity and a motion to stay discovery. The district court again denied the claim of qualified immunity and the defendants filed their notice of appeal.
In Phillips v. Montgomery County, 24 F.3d 736 (5th Cir.1994), we held that defendants cannot fail to appeal the denial of qualified immunity and then "restart the appellate clock by refiling substantially the same motion." Here, it is clear that the defendants' motion to dismiss and the motion for summary judgment raise the same defense, that is, that they are entitled to qualified immunity because the plaintiff has not asserted the deprivation of a constitutional right. Further, neither motion relies on material outside the pleadings; nor were any new pleadings filed after the first motion to dismiss.
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Poe v. Leonard
...a qualified immunity claim. See Saucier, 121 S.Ct. at 2156. Second, the case Poe cites for support, Armstrong v. Texas State Bd. of Barber Exam'rs, 30 F.3d 643, 644 (5th Cir.1994), is inapposite. In that case, the defendants filed a motion to dismiss, based, inter alia, on qualified immunit......
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Robbins v. Wilkie
...a second denial of qualified immunity because the second motion was substantially the same as the first. Armstrong v. Tex. State Bd. of Barber Exam'rs, 30 F.3d 643, 644 (5th Cir.1994); Taylor v. Carter, 960 F.2d 763, 764 (8th Cir.1992). But see Grant v. City of Pittsburgh, 98 F.3d 116, 120 ......
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Grant v. City of Pittsburgh
...No such successive Rule 56 motions are at issue here. In the third case cited by the plaintiffs, Armstrong v. Texas State Bd. of Barber Examiners, 30 F.3d 643, 644 (5th Cir.1994), the defendants had filed a motion to dismiss, which was denied, and the defendants declined to appeal. The defe......
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Poe v Leonard
...immunity claim. See Saucier, 533, U.S. at _,121 S. Ct. at 2156. Second, the case Poe cites for support, Armstrong v. Texas State Bd. of Barber Exam'rs, 30 F.3d 643, 644 (5th Cir. 1994), is inapposite. In that case, the defendants filed a motion to dismiss, based, inter alia, on qualified im......