Case: 10-30213 Document: 00511284260 Page: 1 Date Filed: 11/04/2010




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

                                              FILED
                                                               November 4, 2010

                              No. 10-30213                      Lyle W. Cayce
                            Summary Calendar                         Clerk



ANNETTE FULTON,

                                         Plaintiff–Appellee,
v.

STEVE CARAWAY, Chief of the Kenner Police Department; PAUL ZENO,
Jail Supervisor,

                                         Defendants–Appellants.

ANNETTE FULTON,

                                         Plaintiff–Appellee,
v.

STEVE CARAWAY, Chief; PAUL ZENO, Officer,

                                         Defendants–Appellants.




                Appeal from the United States District Court
                    for the Eastern District of Louisiana
                          USDC No. 2:09-CV-3310


Before WIENER, PRADO, and OWEN, Circuit Judges.
      Case: 10-30213 Document: 00511284260 Page: 2 Date Filed: 11/04/2010



                                       No. 10-30213

PER CURIAM:*
       Steve Caraway, Chief of the Kenner Police Department, and Paul Zeno,
Jail Supervisor (together, Kenner Appellants) appeal from the United States
District Court for the Eastern District of Louisiana’s denial of their motion
requesting a Rule 7(a) reply from plaintiff–appellee Annette Fulton.                       We
conclude that we do not have jurisdiction over this appeal and therefore dismiss
it.
       Fulton sued Caraway, Zeno, and an unidentified “Officer A,” along with
the City of Kenner and the Kenner Police Department, in both state and federal
court. 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
with the near-identical case originally filed in federal district court. The City of
Kenner, the Kenner Police Department, and Officer A, who has not yet been
identified, are not parties to this appeal. In her complaint, Fulton alleged
violations of the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments of
the United States Constitution and several provisions of the Louisiana
Constitution and Civil Code. Fulton sued pursuant to 42 U.S.C. § 1983 and
invoked the supplemental jurisdiction of the district court under 28 U.S.C.
§ 1367 to hear her state law claims.
       The Kenner Appellants asserted the defense of qualified immunity to
Fulton’s claims.       They then filed a motion for a Rule 7(a) reply and a
memorandum of law in support of that motion, pursuant to a procedure
developed by this court through which the district court may require a plaintiff
to 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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                                         No. 10-30213

defense of qualified immunity.1 Fulton opposed the motion. Deciding that a
reply was unnecessary, the district court denied the motion.                      This appeal
followed.
       Because the denial of the motion for a Rule 7(a) reply is not a final
judgment, we must address whether this court has jurisdiction to hear the
appeal.2 We have jurisdiction to determine our jurisdiction.3 We requested that
the parties brief the question of whether the “order denying the motion . . . is
appealable at this stage of the litigation pursuant to [F ED . R. C IV. P.] 54(b), or
the collateral order doctrine, or whether there exists some other basis of
appellate jurisdiction.”
       The 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
appeal falls into the “small class [of orders] which finally determine claims of
right separable from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause itself to require
that appellate consideration be deferred until the whole case is adjudicated.” 5
They contend that permitting an interlocutory appeal of the district court’s
denial of their motion for a Rule 7(a) reply vindicates the Harlow v. Fitzgerald
qualified immunity doctrine6 by ensuring that the issue of qualified immunity
will be decided at the earliest possible time. The district court’s denial of their



       1
        See Reyes v. Sazan, 

, 159 (5th Cir. 1999); Schultea v. Wood, 

,
1433-34 (5th Cir. 1995) (en banc).
       2
           See 28 U.S.C. §§ 1291-1292.
       

. Halliburton, 

, 481 (5th Cir. 2010).
       4
           See Cohen v. Beneficial Indus. Loan Corp., 

, 546 (1949).
       5
           

U.S. 800, 807 (1982).

                                               3
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                                        No. 10-30213

motion, they continue, will subject them to discovery, a burden of litigation from
which qualified immunity should protect them.7 They conclude that the order
“clearly and finally resolved an important issue separate from the merits of the
lawsuit.”
      We disagree with the Kenner Appellants’ conclusion. The Supreme Court
has held that even under the required narrow reading of the appealable
collateral order doctrine, government officials are permitted to appeal decisions
in which the district court denies them qualified immunity.8 The rationale for
permitting such appeals is that qualified immunity is a defense not only from
liability, but also from the burdens of litigation.9 When a district court order
denying qualified immunity “turns on an issue of law,” the order conclusively
determines that the defendant must bear the burdens of discovery, a decision
which is “conceptually distinct from the merits of the plaintiff’s claim” and
“would prove effectively unreviewable on appeal from a final judgment.” 10
      We unquestionably would have jurisdiction over an appeal of a denial of
a motion to dismiss a § 1983 claim on a defense of qualified immunity.11 But this
case presents a different situation: the Kenner Appellants appeal from a non-
dispositive motion. The Supreme Court requires that a collateral order fulfill
three stringent conditions to be appealable: it must conclusively determine the
disputed question, resolve an important issue completely separate from the
merits of the action, and be effectively unreviewable on appeal from a final




      7
          See Mitchell v. Forsyth, 

, 526 (1985).
      8
          

      9
          Ashcroft v. Iqbal, 

, 1945-46 (2009) (citing 

).
      10
           

      11
           

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                                         No. 10-30213

judgment.12 The denial of the motion for a Rule 7(a) Schultea reply does not
fulfill the first requirement—the order did not conclusively determine the
disputed question.       The district court’s order does not contain a ruling on
whether the facts alleged would overcome qualified immunity, only that they
were detailed enough to allow the court to rule on any subsequent dispositive
motion. We are unwilling to expand the collateral order doctrine this far.
                                     *        *         *
       We do not have jurisdiction over this appeal; it is therefore DISMISSED.




       

. Halliburton, 

, 482 (5th Cir. 2010) (quoting Will v. Hallock, 

, 349-50 (2006)).

                                              5