Edwards v. Cass County, Tex., 90-4511

Decision Date30 November 1990
Docket NumberNo. 90-4511,90-4511
Citation919 F.2d 273
PartiesErnest EDWARDS and Sarah Edwards, Plaintiffs-Appellees, v. CASS COUNTY, TEXAS, Defendant, Paul Boone and Gary Pixley, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

William S. Helfand, Hirsch, Glover, Robinson & Sheiness, Houston, Tex., for defendants-appellants.

Edward L. Merritt, William King Gleason, Harbour, Smith, Harris & Cammack, Longview, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEE, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendants Paul Boone and Gary Pixley seek to appeal an adverse ruling following their assertion of qualified immunity. Plaintiffs Ernest and Sarah Edwards have moved to dismiss the appeal for want of appellate jurisdiction. Concluding that we in fact are without jurisdiction, we grant the motion, dismiss the appeal, and deny sanctions.

I.

The Edwardses' son, Carl Edwards, committed suicide while under arrest in the Cass County, Texas, jail. His parents brought the instant suit on September 7, 1989, pursuant to 42 U.S.C. Sec. 1983, with a pendent wrongful death claim under the Texas Tort Claims Act, asserting that the defendants knew of the decedent's suicidal tendencies but were consciously indifferent to his circumstance.

The defendants filed a motion to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6); the brief in support of that motion asserted that the two individual defendants were entitled to qualified immunity. The district court denied that motion on December 19, 1989, and the defendants sought no interlocutory appeal from the denial.

On November 15, 1989, the court had issued a scheduling order setting a discovery deadline of April 20, 1990, for all discovery and March 5, 1990, for the filing of all pre-trial motions, including motions for summary judgment. The defendants obtained an extension of the discovery deadline to May 20, 1990, but neither requested nor obtained an extension of the deadline for filing motions.

Jury selection was scheduled for June 5, 1990. On June 4, defendants filed a motion for leave to file an out-of-time motion for summary judgment asserting qualified immunity. They contended that the motion would be based in part upon information gleaned from the depositions of plaintiffs and their expert and fact witnesses, which depositions had been obtained during the extended discovery period.

The court denied the motion on June 7, 1990, thus preventing defendants from filing their summary judgment motion. The court noted that the motion for leave had been filed three months after the deadline for motions. The defendants made no effort to appeal the order of denial.

On June 14 (during the week following jury selection but before trial), defendants filed a motion asking the court to reconsider its denial of the motion for leave to file. The court denied the motion for reconsideration on June 25.

Trial had been scheduled for July 9. On July 2, the individual defendants (Boone and Pixley) filed a "Notice of Interlocutory Appeal" in which they attempted to appeal "the District Court's refusal to permit the filing of and ruling on Defendants' Motion for Summary Judgment on the issue of qualified immunity."

II.

The defendants assert that they are entitled to an interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We disagree.

In Mitchell, the Court held "that a district court's denial of a claim of qualified immunity ... is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." 472 U.S. at 530, 105 S.Ct. at 2817. In reaching that conclusion, the Court announced three factors that must be present for an order that would not normally be considered "final" under section 1291 to be appealable: (1) The district court's decision "is effectively unreviewable on appeal from a final judgment"; (2) "it must 'conclusively determine' the disputed question"; and (3) "that question must involve a 'clai[m] of right separable from, and collateral to, rights asserted in the action.' " Id. at 527, 105 S.Ct. at 2816 (citations omitted, brackets in original).

Mitchell v. Forsyth involved an appeal from the district court's square denial of the individual defendant's motion for summary judgment premised upon a claim of qualified immunity. Subsequently, this court in Helton v. Clements, 787 F.2d 1016 (5th Cir.1986) (per curiam), considered whether it had jurisdiction to review a district court's refusal to rule on the question of qualified immunity.

Specifically, in Helton the defendant filed an initial motion to dismiss, asserting absolute and qualified immunity. In response, the court announced, by order, that it would not make further rulings on any motions prior to trial but would carry any pending motions along with trial on the merits.

We considered the three Mitchell factors and held that "a refusal to rule on a claim of immunity, like the explicit denial of a claim of immunity, is also immediately appealable under the collateral order doctrine." Id. at 1017. We analyzed the factors as follows:

First, like an explicit denial of a claim of absolute or qualified immunity, the refusal to rule on a claim of immunity until trial is 'effectively unreviewable on appeal from a final judgment.' Mitchell, 472 U.S. at [527, 105 S.Ct. at 2816].... In both cases a defendant's entitlement under immunity doctrine to be free from suit and the burden of avoidable pretrial matters is effectively lost if the case erroneously goes to trial. Id. ... Second, like the denial of a claim of immunity, the refusal to rule on such claims 'conclusively determines the defendant's claim of right not to stand trial ... because "[t]here are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred." ' Id. (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)) (emphasis in original). Third, apart from whether a district court denies or refuses to rule on the claim of immunity, the claim of immunity in both cases 'is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated.' Id. at [527-28, 105 S.Ct. at 2816-17].

Helton, id.

In the case sub judice, unlike in Helton, there has been no "explicit denial of a claim of absolute or qualified immunity," id., from which defendants seek to appeal. To be sure, the district court previously had denied defendants' motion to dismiss based upon qualified immunity, but the defendants, for whatever reason, elected not to appeal that order pursuant to Mitchell v. Forsyth.

No summary judgment motion was pending here; thus, we have neither a denial of such a motion and hence a direct rejection of qualified immunity (as in Mitchell) nor the refusal to rule on such a motion (as in Helton). The defendants forewent their right to file such a motion by allowing the motions deadline to expire without either filing a motion for summary judgment or requesting extension of the deadline. Hence, we perceive no grant of appellate jurisdiction under the narrow exceptions to finality carved out by Mitchell and Helton.

The defendants argue, predictably, that the court's action in refusing them leave to file an eleventh-hour motion for summary judgment is tantamount to a denial of the right recognized in Mitchell--the "right not to stand trial on the plaintiff's allegations." Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (emphasis in original). But the rationale of Mitchell makes sense only where the district court has acted to deny qualified immunity or has the obligation to decide the issue and has failed or refused to do so.

The district court has broad discretion in controlling its own docket. This includes the ambit of scheduling orders and the like. Thus, a court's refusal to allow the filing of a substantive motion on the eve of trial three months after the expiration of a deadline (especially where no extension has been sought) should normally be deemed well within the court's discretion. In other words, a district court seldom would be obliged to interrupt the orderly proceedings of its docket to rule on so critical an issue where the same easily could have been presented at an earlier date.

Here, however, the defendants aver that the court's refusal to do so was unreasonable. Specifically, they assert that before filing a summary judgment motion in good faith, they needed the information gleaned from the...

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