Meza v. Livingston

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

FILED
July 23, 2008

No. 07-50756 Charles R. Fulbruge III
Clerk

RAUL MEZA

Plaintiff - Appellee
v.

BRAD LIVINGSTON, Executive director of the Texas Department of
Criminal Justice, in his official capacity; STUART JENKINS, director of the
Texas Department of Criminal Justice Parole Division, in his official capacity

Defendants - Appellants

Appeal from the United States District Court
for the Western District of Texas

Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Raul Meza, an inmate on supervised release at the Texas County
Correctional Complex, filed Fourteenth Amendment claims against state
officials1 and the Sheriff of Travis County on December 5, 2005. Eleventh
Amendment immunity was asserted in several motions, including a motion to
dismiss on May 22, 2006, and a motion to dismiss and alternative motion for
Rule 7(a) reply filed by Collier, Jenkins’ predecessor, on June 27, 2006. The

1
The original complaint named the former director of the Texas Department of
Criminal Justice Parole Division, Brian Collier.
 No. 07-50756

district court referred these motions to a magistrate judge for recommendation
or resolution on June 30, 2006. The magistrate judge issued a report and
recommendation on August 28, 2006, stating, “Plaintiff’s claims for injunctive
relief . . . should not be dismissed, as they are cognizable under Ex Parte Young.”
On December 6, 2006, the district court accepted the recommendations, granting
Defendants’ first motion to dismiss with respect to Meza’s monetary claims
against Livingston and Collier in their official capacity and denying Defendants’
motion with respect to prospective injunctive relief. For Collier’s motion to
dismiss and motion for a Rule 7(a) reply, the court denied the motion to dismiss
but granted Collier’s motion for a Rule 7(a) reply,2 ordering Meza to reply and
describe Collier’s personal involvement in the alleged unconstitutional acts.
Meza replied.
On June 30, 2006, Meza filed an amended complaint. Livingston and
Collier filed a second motion to dismiss on February 7, 2007, again raising
Eleventh Amendment immunity claims. Livingston and Collier then submitted
a joint motion for summary judgment on March 14, 2007. The court found that
the summary judgment arguments were “duplicative of those contained” in the
pending second motions to dismiss and concluded, “The Court will therefore
dismiss Livingston and Collier’s motions to dismiss and will consider Livingston
and Collier’s arguments as submitted in their pending motions for summary
judgment.” In this same order, the court referred the motions for summary
judgment to the magistrate judge on May 1, 2007.
Defendants filed two motions to stay the pretrial conference hearing and
trial setting with the district court and an emergency motion to stay with this
court, which we denied. On June 26, 2007, the district court held the final
pretrial hearing and stated,

2
This was of course in the context of qualified immunity.

2
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These [immunity] motions, I believe, were filed on March the 14th
and referred to [the] Magistrate Judge . . . who has them under
advisement at this time, and, therefore, I will have them under
advisement. . . .

I want the record to be very clear that I have never refused to rule
on any of the immunity motions that are before me . . . . Those
motions remain pending in front of me and you are not faced with
a refusal to rule.

When the district court held its final pretrial hearing, the magistrate had
not yet issued a report on the Eleventh Amendment claims raised in Defendants’
motion for summary judgment.3 The Eleventh Amendment question with
respect to summary judgment remained “under advisement.”
On appeal, Defendants argue that by “failing” to rule on the issue, the
district court has effectively refused to rule on immunity and that the refusal is
an immediately appealable order under the collateral order doctrine.4 Meza
argues that the appeal is an improper interlocutory appeal and that we do not
have jurisdiction to review it, as the court has not denied their immunity claims
on summary judgment, nor has it refused to rule. He urges that Defendants
could have appealed the district court’s December 6, 2006, denial of their motion
to dismiss – including the court’s denial of their immunity claims – as a
collateral order but failed to do so. Meza similarly maintains that Defendants’
summary judgment motion is essentially a motion to reconsider the district
court’s denial of plaintiffs’ motion to dismiss and that an order denying a motion
to reconsider is not appealable. Furthermore, Meza maintains, the district court

3
The magistrate’s last report was issued on June 5, 2007. This report addressed other
Defendants’ claims, including Eleventh Amendment claims of Defendants Owens, Aliseda,
Aycock, Davis, DeNoyelles, Garcia, and Gonzales, but not Livingston and Jenkins’ claims of
Eleventh Amendment immunity raised in their motion for summary judgment.
4
See Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir. 1986) (per curiam).

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has not refused to rule on the issue but was simply awaiting the magistrate’s
report on the summary judgment motion when Defendants appealed.
We are persuaded that we lack jurisdiction to hear this appeal. Instead
of appealing the district court’s December 6, 2006, denial of Defendants’ motion
to dismiss, which included Eleventh Amendment immunity claims,5 Defendants
appeal the district court’s failure to address their Eleventh Amendment claims
in a motion for summary judgment that was being considered by the magistrate
judge when Defendants appealed. This is an unreviewable interlocutory appeal.
“The denial of a summary judgment is generally not a final, appealable
order.”6 A district court’s failure to rule on a summary judgment motion while
awaiting a magistrate judge’s report and recommendation on that motion is
similarly unreviewable. Here, although the initial briefing on the summary
judgment motion was completed as of May 11, 2007, the magistrate ordered
additional briefing, and Defendants appealed before the district court could
receive the magistrate’s report.
“‘[U]nder the collateral order doctrine, a small class of interlocutory orders
that (1) conclusively determine [“the defendant’s claim of right not to stand
trial”]7, (2) important issues, which are separate from the merits of the action,
and (3) which would be effectively unreviewable on appeal from a final
judgment, are deemed ‘final’ for purposes of appeal.’”8 In at least one case, we
have held that a district court’s refusal to rule on a motion to dismiss containing

5
We are not persuaded by Meza’s arguments that Defendants’ failure to appeal the
denial of their motion to dismiss resulted in a waiver of their immunity claims or that their
motion for summary judgment was by necessity a motion to reconsider. We simply note that
the court ruled on the Eleventh Amendment immunity issue in denying Defendants’ motion
to dismiss with respect to Meza’s claims for prospective injunctive relief.
6
Reyes v. City of Richmond, Tex., 287 F.3d 346, 350 (5th Cir. 2002).
7
Helton, 787 F.2d at 1017 (quoting Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)).
8
Reyes, 287 F.3d at 350 (quoting Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir.1996)).

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claims of absolute and qualified immunity constituted a final order under the
collateral order doctrine.9 We are not persuaded that this case falls under
Helton’s narrow holding. Unlike in Helton, the district court ruled on
defendants’ motion to dismiss, denying their Eleventh Amendment immunity
claims with the exception of immunity from Meza’s claims involving monetary
damages, a ruling that Defendants do not appeal here. Although the district
court has not yet ruled on Defendants’ motion for summary judgment, it has not
refused to rule on that motion, stating that it has it “under advisement.” In
Helton, in contrast, the district court made it clear that it would not rule on
further immunity claims until trial, stating,
[A]ll parties and attorneys are here notified that any further
motions in this case will not be ruled upon by the court prior to trial
but will be carried along with the trial of the case on the merits.
This ruling applies to any pending motions . . . .10

Nor has the district court “failed” to rule on the motion. It referred the
motion to the magistrate judge for a report and recommendations, and
Defendants appealed before the court received the report, thus temporarily
depriving that court of jurisdiction to grant or deny the motion.
Defendants urge that “[a]lthough this Court has not issued any further
published opinions [after Helton] recognizing other instances where the refusal
or failure to rule resulted in an immediately appealable order under the
collateral order doctrine,” other circuits have. In those cases, the district court
either refused to rule, failed to explain its reasons for delaying a ruling on
qualified immunity until trial, or dismissed an immunity claim implicitly or in

9
Helton, 787 F.2d at 1017.
10
Id.

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an oral ruling.11 We are not convinced that we should “extend” Helton to the
facts of this case, as none of these circumstances apply here.
AFFIRMED.

11
See, e.g., Parton v. Ashcroft, 16 F.3d 226, 227 (8th Cir. 1994) (“On the morning of trial
the magistrate judge refused to rule on the motion for summary judgment on the ground of
qualified immunity.”); Workman v. Jordan, 958 F.2d 332, 334 (10th Cir. 1992) (“The district
court, without explanation, postponed disposition of the qualified immunity issue until trial.”);
Id. at 336 n.5 (“Although the oral ruling may have lacked procedural formality for purposes
of appeal, we allow the appeal from this ruling because there is no question as to its finality
. . . .”); Craft v. Wipf, 810 F.2d 170, 172 (8th Cir. 1987) (“In its memorandum opinion, the
District Court held only that it would not abstain from hearing the case. It is conceivable that
it considered abstention to be the logical first step in deciding the various issues raised in
defendants’ motion for summary judgment, and that it intended to decide other issues, such
as immunity, later. This seems somewhat unlikely, however, given the court’s reference to the
plaintiffs’ day in court and its direction for discovery to be completed in sixty days.”).

6