The Estate of Marquette F. Cummings Jr. v. Warden Carter Davenport , 906 F.3d 934 ( 2018 )


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  •                Case: 17-13999       Date Filed: 10/02/2018      Page: 1 of 19
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-13999
    ________________________
    D.C. Docket No. 2:15-cv-02274-JEO
    THE ESTATE OF MARQUETTE F. CUMMINGS JR.,
    Plaintiff-Appellee,
    versus
    CARTER DAVENPORT,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _______________________
    (October 2, 2018)
    Before WILLIAM PRYOR, MARTIN, and BALDOCK, * Circuit Judges.
    WILLIAM PRYOR, Circuit Judge:
    This interlocutory appeal of the partial denial of Carter Davenport’s motion
    to dismiss the amended complaint by the estate of Marquette F. Cummings Jr.
    *
    Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
    designation.
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    requires us to decide whether Davenport, a prison warden, satisfied his threshold
    burden of establishing entitlement to qualified immunity. Cummings, a prisoner,
    was stabbed by a fellow inmate, was transported to a hospital, and died the next
    day. His estate filed a civil-rights complaint, see 42 U.S.C. § 1983, that Davenport
    violated the Eighth and Fourteenth Amendments to the Constitution by illegally
    interfering with Cummings’s end-of-life medical care with deliberate indifference
    to his serious medical needs, see Estelle v. Gamble, 
    429 U.S. 97
    (1976). Davenport
    invoked qualified immunity, but the district court ruled that he failed to establish
    that his alleged actions—which included the entry of a do-not-resuscitate order and
    the decision to remove Cummings from artificial life support—fell within the
    scope of his discretionary authority, his threshold burden for qualified immunity.
    Because Alabama law establishes that Davenport’s discretionary authority did not
    extend to the alleged actions, we affirm.
    I. BACKGROUND
    We divide our discussion of the background in three parts. First, we describe
    the facts about Cummings’s death. Second, we describe the factual allegations that
    form the basis of the estate’s claim of deliberate indifference against Davenport.
    Third, we relate the proceedings in the district court. Of course, for purposes of this
    appeal from the partial denial of a motion to dismiss, “we accept as true the facts
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    alleged in the complaint, drawing all reasonable inferences in [the] plaintiff’s
    favor.” Bailey v. Wheeler, 
    843 F.3d 473
    , 480 (11th Cir. 2016).
    A. Cummings’s Death
    Cummings was an inmate at the St. Clair Correctional Facility in
    Springville, Alabama. At about 7:40 a.m. on January 6, 2014, another inmate
    stabbed Cummings in the eye with a weapon commonly known as a “shank.”
    Several other inmates helped Cummings to the prison infirmary, and, at about 8:00
    a.m., he was airlifted to the University of Alabama at Birmingham Hospital. The
    University Hospital received him in the emergency room and transferred him to the
    Intensive Care Unit. Later that day, a University Hospital spokeswoman said
    Cummings was in “critical condition.”
    Angela Gaines, Cummings’s mother, learned of the attack on her son that
    morning. She called the prison to “verify” that her son had been stabbed, but her
    calls were unanswered. That afternoon, Warden Davenport called her back to tell
    her that Cummings had indeed been stabbed and that he was being transported to a
    hospital. When Gaines asked Davenport for the name of the hospital, he stated he
    could not say but promised to call back with more information. Several hours later,
    he told Gaines that Cummings was at the University Hospital.
    Gaines went to the University Hospital and asked to see her son, but the staff
    told her she would have to wait at least 90 minutes. At some point, the hospital
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    staff told Gaines that “Cummings had been stabbed in the eye and that, due to his
    injuries, he was only operating with 10% of normal brain functioning.” But Gaines
    believed that Cummings was responsive to her “verbal cues,” such as “blink if you
    can hear me.”
    Cummings never left the University Hospital. On January 7, 2014,
    Cummings was removed from life support, and he stopped breathing at 7:05 p.m.
    that evening.
    B. Davenport’s Alleged Misdeeds
    The estate alleges that the University Hospital’s staff “declared Cummings a
    non-survivor shortly after his arrival,” that his papers included an instruction from
    Davenport that “‘no heroic measures’ would be taken to save his life,” and that this
    instruction came from Davenport. Dr. Sherry Melton, at Davenport’s instruction,
    entered a do-not-resuscitate order for Cummings at about 9:17 p.m. “Melton relied
    upon the statements of Defendant Davenport, a non-family member and not a legal
    guardian, to place Cummings on [the order].” Gaines and other family members
    were at the hospital at the time.
    At some point, “medical personnel informed Ms. Gaines that Warden
    Davenport authorized [them] to stop giving Cummings medication and to
    disconnect the life support machine.” Gaines protested that she wanted Cummings
    to stay on life support because “he was still breathing and responding to verbal
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    commands.” But the University Hospital staff “repeatedly conveyed that ‘it was
    not her (Ms. Gaines’[s]) call’ because the State had legal custody over Cummings
    and that the decision to let her son die was the Warden’s decision.” The estate
    alleges that Cummings’s removal from life support was “[b]ased on this directive
    from Warden Davenport.”
    C. The Proceedings in the District Court
    After Cummings’s death, his estate and Gaines filed a complaint against the
    Alabama Department of Corrections, the University Hospital, and several
    Department and University Hospital employees, including Davenport. The estate
    and Gaines asserted federal claims under section 1983 as well as state-law claims
    of wrongful death, outrage, and negligence. The defendants moved to dismiss the
    complaint, and the district court dismissed all claims except for one against
    Davenport.
    The district court denied Davenport’s motion to dismiss the estate’s claim of
    deliberate indifference based on qualified immunity. Although Davenport
    “den[ied] that [he] violated any of [Cummings’s] rights” and contended that the
    estate had not identified a violation of clearly established constitutional law, the
    district court ruled both that the complaint stated a claim of deliberate indifference
    to serious medical needs and that Davenport could not invoke qualified immunity
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    because he had not established that his alleged actions were within his
    “discretionary authority” as a state official.
    After the district court issued its memorandum opinion granting the motions
    to dismiss in part, the estate and Gaines filed an amended complaint. Davenport
    moved to dismiss the amended complaint and again asserted qualified immunity,
    this time in less conclusory fashion. He argued that his alleged actions fell within
    his discretionary authority because, as a prison warden, it was his responsibility to
    “supervis[e] and control[] the care and custody of inmates including their medical
    care.” He argued that the amended complaint failed to state a claim of deliberate
    indifference because it focused on whether “the proper person” had made medical
    decisions for Cummings, not on any denial of medical care. And he maintained
    that no authority clearly established that Davenport’s actions were
    unconstitutional.
    The district court again dismissed all claims except the estate’s claim of
    deliberate indifference against Davenport. It reasoned that Davenport had not
    “cite[d] any authority suggesting that a warden’s authority to make [medical]
    decisions . . . for inmates extends to making end-of-life decisions.” And it
    concluded, based on Alabama law, that a warden must either have an advance
    directive from the patient or be a court-appointed guardian to make those
    decisions. The district court concluded that Davenport had not met his burden of
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    establishing that the alleged acts were within his discretionary authority, so he
    could not claim qualified immunity.
    II. JURISDICTION AND STANDARD OF REVIEW
    Although we ordinarily have jurisdiction to review only “final decisions of
    the district courts,” 28 U.S.C. § 1291, “a district court’s order rejecting qualified
    immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within
    the meaning of [section] 1291.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 672 (2009). Under
    the collateral-order doctrine, “pretrial orders denying qualified immunity” are
    immediately appealable “because such orders conclusively determine whether the
    defendant is entitled to immunity from suit,” the immunity “is both important and
    completely separate from the merits of the action,” and an erroneous denial of
    immunity “could not be effectively reviewed on appeal from a final judgment
    because by that time the immunity from standing trial will have been irretrievably
    lost.” Plumhoff v. Rickard, 
    134 S. Ct. 2012
    , 2019 (2014). “We review de novo a
    district court’s denial of qualified immunity on a motion to dismiss. . . . In doing
    so, we accept as true the facts alleged in the complaint, drawing all reasonable
    inferences in a plaintiff’s favor.” 
    Bailey, 843 F.3d at 480
    .
    III. DISCUSSION
    We divide our discussion in two parts. First, we explain that Davenport is
    not entitled to qualified immunity because Alabama law establishes that his alleged
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    actions were not within his discretionary authority. Second, we explain that we
    lack jurisdiction to consider whether the amended complaint states a claim of
    deliberate indifference to serious medical needs.
    A. Davenport Is Not Entitled to Qualified Immunity Because His Alleged
    Actions Were Not Within His Discretionary Authority.
    The district court ruled, and we agree, that Davenport is not entitled to
    qualified immunity because he failed to establish that his alleged actions were
    within his discretionary authority. Davenport has the initial burden of raising the
    defense of qualified immunity by proving that his discretionary authority extended
    to his alleged actions. Because Alabama law establishes that a prison warden does
    not have the discretionary authority to control a dying inmate’s end-of-life
    decisions, Davenport cannot satisfy that burden and is not entitled to qualified
    immunity.
    “[G]overnment officials performing discretionary functions[] generally are
    shielded from liability [or suit] for civil damages insofar as their conduct does not
    violate clearly established statutory or constitutional rights of which a reasonable
    person would have known.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982); see
    Mitchell v. Forsyth, 
    472 U.S. 511
    , 526 (1985) (explaining that qualified immunity
    is an immunity from suit, not just liability). The “breathing room” afforded by
    qualified immunity is generous; within its scope, “it protects ‘all but the plainly
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    incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 
    563 U.S. 731
    , 743 (2011) (quoting Malley v. Briggs, 
    475 U.S. 335
    , 341 (1986)).
    Although qualified immunity provides government officials with a
    formidable shield, their entitlement to raise that shield is not automatic. We have
    explained that the official bears the initial burden of raising the defense of qualified
    immunity by proving that he was acting within his authority:
    To establish the defense of qualified immunity, the burden is first on
    the defendant to establish that the allegedly unconstitutional conduct
    occurred while he was acting within the scope of his discretionary
    authority. If, and only if, the defendant does that will the burden shift
    to the plaintiff to establish that the defendant violated clearly
    established law.
    Harbert Int’l, Inc. v. James, 
    157 F.3d 1271
    , 1281 (11th Cir. 1998) (emphasis
    added) (citation omitted).
    “To establish that the challenged actions were within the scope of his
    discretionary authority, a defendant must show that those actions were (1)
    undertaken pursuant to the performance of his duties, and (2) within the scope of
    his authority.” 
    Id. at 1282.
    In other words, “[w]e ask whether the government
    employee was (a) performing a legitimate job-related function (that is, pursuing a
    job-related goal), (b) through means that were within his power to utilize.”
    Holloman ex rel. Holloman v. Harland, 
    370 F.3d 1252
    , 1265 (11th Cir. 2004). “In
    applying each prong of this test, we look to the general nature of the defendant’s
    action, temporarily putting aside the fact that it may have been committed for an
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    unconstitutional purpose, in an unconstitutional manner, to an unconstitutional
    extent, or under constitutionally inappropriate circumstances.” Mikko v. City of
    Atlanta, 
    857 F.3d 1136
    , 1144 (11th Cir. 2017) (quoting 
    Holloman, 370 F.3d at 1266
    )). “[A] government official can prove he acted within the scope of his
    discretionary authority by showing ‘objective circumstances which would compel
    the conclusion that his actions were undertaken pursuant to the performance of his
    duties and within the scope of his authority.’” Rich v. Dollar, 
    841 F.2d 1558
    , 1564
    (11th Cir. 1988) (quoting Barker v. Norman, 
    651 F.2d 1107
    , 1121 (5th Cir. Unit A
    July 1981)). A “bald assertion by the defendant that the complained-of actions
    were . . . within the scope of his discretionary authority” is insufficient. 
    Barker, 651 F.2d at 1124
    –25.
    We look to state law to determine the scope of a state official’s discretionary
    authority, as our decisions in Harbert International and Lenz v. Winburn, 
    51 F.3d 1540
    (11th Cir. 1995), illustrate. In Harbert International, we examined Alabama
    law and the terms of a state contract to determine that directors of the Alabama
    Department of Transportation had the authority to withhold liquidated damages
    from a contractor. 
    See 157 F.3d at 1283
    . And in Lenz, we held that a Florida
    guardian ad litem lacked the authority to enter a home and retrieve a child’s
    possessions because Florida law established that the defendant’s role was to be the
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    child’s “legal representative, not . . . the child’s caretaker or 
    guardian.” 51 F.3d at 1547
    (emphasis omitted).
    The district court correctly looked to Alabama law to determine whether
    Davenport’s alleged actions were within his authority. And it correctly held that
    they were not. The Alabama Natural Death Act, Ala. Code § 22-8A-1 et seq.,
    compels the conclusion that the office of a prison warden grants no authority to
    enter a do-not-resuscitate order or to order the withdrawal of artificial life support
    on behalf of a dying inmate.
    The Act establishes a comprehensive legislative scheme for end-of-life
    medical decisions, including the decisions to enter a do-not-resuscitate order, see
    
    id. § 22-8A-3(7),
    and to withdraw artificial life support, see 
    id. § 22-8A-3(2),
    (10).
    Based on the legislative finding that “competent adult persons have the right to
    control the decisions relating to . . . the decision to have medical procedures, life-
    sustaining treatment, and artificially provided nutrition and hydration provided,
    withheld, or withdrawn,” 
    id. § 22-8A-2,
    the Act empowers any competent adult to
    execute a living will that directs his end-of-life care or to designate another
    competent adult to make decisions for him as his health-care proxy, see 
    id. §§ 22-
    8A-4, -6.
    For permanently incapacitated patients who have neither executed a living
    will nor designated a health-care proxy, the Act establishes a comprehensive
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    scheme that specifies who may make end-of-life decisions. See 
    id. § 22-8A-11(a),
    (d). The highest-priority surrogate is “[a] judicially appointed guardian, provided
    the appointment specifically authorizes the guardian to make decisions regarding
    the withholding of life-sustaining treatment or artificially provided nutrition and
    hydration.” 
    Id. § 22-8A-11(d)(1).
    The patient’s spouse, adult children, parents,
    adult siblings, and other adult relatives follow respectively. See 
    id. § 22-8A-
    11(d)(2)–(6). If the patient has no known relatives, a committee of medical
    professionals may act as a surrogate. See 
    id. § 22-8A-
    11(d)(7).
    The Act establishes that Davenport lacked the discretionary authority to
    instruct the University Hospital to enter a do-not-resuscitate order for Cummings
    or to withdraw his artificial life support. Under the Act, only an authorized
    surrogate can consent to a do-not-resuscitate order, 
    id. § 22-8A-3(7),
    or “determine
    whether to provide, withdraw, or withhold life-sustaining treatment or artificially
    provided nutrition and hydration,” 
    id. § 22-8A-
    11(a). Nothing in the Act
    empowered Davenport, as a prison warden, to act as the surrogate of a dying
    inmate. Davenport could outrank Cummings’s relatives in the hierarchy of
    priority—or figure in the hierarchy at all—only if a court appointed him
    Cummings’s guardian and “specifically authorize[d] [him] to make decisions
    regarding the withholding of life-sustaining treatment or artificially provided
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    nutrition and hydration,” 
    id. § 22-8A-
    11(d)(1). And Davenport has never suggested
    that he received such an appointment.
    The Act is fatal to Davenport’s defense of qualified immunity. Davenport
    argues that his alleged actions were within his discretionary authority because an
    inmate “is in the legal custody of the warden,” Ex parte Rogers, 
    82 So. 785
    , 785
    (Ala. Ct. App. 1919), and “[d]ecision-making related to the provision of medical
    care for inmates . . . [falls] soundly within [prison officials’] discretion,” Edwards
    v. Ala. Dep’t of Corr., 
    81 F. Supp. 2d 1242
    , 1252 (M.D. Ala. 2000). We have no
    quarrel with these firmly established legal principles. But they do not “compel the
    conclusion,” 
    Barker, 651 F.2d at 1121
    , that an Alabama warden has the authority
    to enter a do-not-resuscitate order or to consent to the withdrawal of artificial life
    support on behalf of a dying inmate. And the Act makes clear that an Alabama
    warden does not in fact have that authority.
    Davenport contends that the Act “ha[s] no application to the facts of this
    case,” but he misunderstands the relevance of the Act to this appeal. He argues that
    the provisions of the Act had not “become operative in Cummings’[s] case”
    because the amended complaint does not allege that Cummings executed a living
    will or designated a health-care proxy or that Gaines was ever “made” a surrogate.
    But the Act controls this appeal not because it tells us the limits of Gaines’s
    authority, but because it tells us the limits of Davenport’s. The Act specifies, in
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    order of priority, who may make end-of-life decisions on behalf of a permanently
    incapacitated patient, and a prison warden is nowhere on the list. See Ala. Code
    § 22-8A-11.
    It is a familiar canon that “[t]he expression of one thing implies the
    exclusion of others.” Antonin Scalia & Bryan A. Garner, Reading Law: The
    Interpretation of Legal Texts § 10, at 107 (2012) (emphasis omitted). And the
    Act’s list of potential surrogates includes not just “one thing,” but a range of
    specific possibilities that include a court-appointed guardian, any member of the
    patient’s family, and a medical committee. See Ala. Code § 22-8A-11(d)(1)–(7).
    The conclusion that “the expression of” all of these possible surrogates “implies
    the exclusion of others”—including a prison warden—is inescapable. See Scalia &
    Garner, Reading Law § 10, at 107 (emphasis omitted) (explaining that the
    “negative-implication canon” applies when the inclusions “can reasonably be
    thought to be an expression of all that shares in the grant or prohibition involved”).
    The principle that we "look to the general nature of the defendant's action" to
    determine whether an official was acting within his discretionary authority does
    not change our conclusion. 
    Mikko, 857 F.3d at 1144
    (quoting 
    Holloman, 370 F.3d at 1266
    )). Davenport argues that he is entitled to qualified immunity because he
    had some general authority to make medical decisions for inmates, but this
    argument misunderstands our precedents. The reason we take care not to “assess
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    the defendant’s act at too high a level of generality,” 
    Holloman, 370 F.3d at 1266
    ,
    is not to give officials additional slack; it is to avoid the “tautology” of asking
    whether a defendant had the authority to violate the law, Harbert 
    Int’l, 157 F.3d at 1282
    . What we strip away from the defendant’s allegedly unconstitutional action to
    isolate its “general nature” is nothing more than its alleged unconstitutionality:
    “that it may have been committed for an unconstitutional purpose, in an
    unconstitutional manner, to an unconstitutional extent, or under constitutionally
    inappropriate circumstances.” 
    Holloman, 370 F.3d at 1266
    ; see also 
    id. (“[W]e consider
    a government official’s actions at the minimum level of generality
    necessary to remove the constitutional taint.”).
    If Davenport categorically lacked the authority to enter a do-not-resuscitate
    order or to withdraw Cummings’s life support, we cannot hold that he is entitled to
    qualified immunity simply because he had some authority to make other medical
    decisions. That shift in the level of generality would be more generous to
    Davenport than is “necessary to remove the constitutional taint,” 
    id. If Alabama
    did empower prison wardens to make end-of-life decisions for permanently
    incapacitated inmates, then we would have to decide whether Davenport’s exercise
    of that authority violated clearly established constitutional law. But the Act makes
    clear that Alabama has not given prison wardens that authority, and our recognition
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    that Davenport’s alleged actions were outside his discretionary authority says
    nothing about the merits of the estate’s constitutional claim.
    Finally, contrary to our precedents, Davenport suggests that the
    discretionary-authority requirement is not part of the qualified-immunity analysis.
    He asserts that “[w]hile the requirement . . . is ubiquitous in Eleventh Circuit
    authority, interestingly, such a requirement is nowhere to be found in Supreme
    Court qualified immunity cases.” True, the Supreme Court has never addressed the
    scope of an official’s burden to establish that a suit against him is based on actions
    taken within his authority, but Davenport is wrong to suggest that Supreme Court
    precedent offers no support for such a requirement. On the contrary, the Court has
    explained that “[t]he conception animating the qualified immunity doctrine . . . is
    that ‘where an official’s duties legitimately require action in which clearly
    established rights are not implicated, the public interest may be better served by
    action taken with independence and without fear of consequences.’” 
    Mitchell, 472 U.S. at 525
    (emphasis added) (some internal quotation marks omitted) (quoting
    
    Harlow, 457 U.S. at 819
    ); see also 
    Harlow, 457 U.S. at 819
    (emphasizing that
    qualified immunity “provide[s] no license to lawless conduct”). And recent
    precedent reiterates that “[g]overnment officials are entitled to qualified immunity
    with respect to ‘discretionary functions’ performed in their official capacities.”
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    Ziglar v. Abbasi, 
    137 S. Ct. 1843
    , 1866 (2017) (emphasis added) (quoting
    Anderson v. Creighton, 
    483 U.S. 635
    , 638 (1987)).
    We acknowledge that not every circuit court has formulated the
    discretionary-authority requirement as part of its qualified-immunity analysis, see,
    e.g., Stanley v. Gallegos, 
    852 F.3d 1210
    , 1214–16 (10th Cir. 2017) (opinion of
    Hartz, J.) (collecting cases and discussing pros and cons of the requirement); 
    id. at 1225–27
    (Holmes, J., concurring in the judgment) (arguing that Tenth Circuit
    precedent forecloses the requirement), and we acknowledge that not all of those
    that have formulated it apply it in precisely the same way as this Court, see In re
    Allen, 
    119 F.3d 1129
    , 1132 (4th Cir. 1997) (Motz, J., concurring in the denial of
    rehearing en banc). But these ambiguities, however potentially fascinating to legal
    scholars, are of no help to Davenport in this appeal.
    As Davenport concedes, we are bound by “ubiquitous” circuit precedent to
    apply the discretionary-authority requirement. And we are bound to hold, based on
    the comprehensive Alabama law that governs end-of-life decisions, that Davenport
    acted beyond the scope of his discretionary authority when he allegedly instructed
    the University Hospital to enter a do-not-resuscitate order for Cummings and to
    remove him from artificial life support. We affirm the denial of qualified
    immunity.
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    B. We Lack Jurisdiction to Consider Whether the Amended Complaint
    States a Claim.
    Davenport also contends that we should reverse because the amended
    complaint fails to state a claim, but we lack jurisdiction to do so. Although
    Davenport is right that “[s]tating a constitutional claim is a precondition . . . to
    defeat[ing] the qualified immunity defense,” this correct statement of law
    presupposes a defendant who, unlike Davenport, has satisfied his burden. “To
    establish the defense of qualified immunity, the burden is first on the defendant to
    establish that the allegedly unconstitutional conduct occurred . . . within the scope
    of his discretionary authority,” and “only if[] the defendant does that will the
    burden shift to the plaintiff.” Harbert 
    Int’l, 157 F.3d at 1281
    ; see also 
    Rich, 841 F.2d at 1563
    –64 (explaining the “two-step framework” of our qualified-immunity
    analysis). Davenport failed to satisfy his threshold burden, so there is no defense
    for the estate to “defeat,” and the district court did not err when it denied qualified
    immunity. This holding exhausts our jurisdiction under the collateral-order
    doctrine.
    We can review the district court’s “pretrial order[] denying qualified
    immunity” only because an official’s potential immunity from suit “is both
    important and completely separate from the merits of the action,” is “conclusively
    determine[d]” by an adverse order, and is “irretrievably lost” by the time it could
    be “reviewed on appeal from a[n adverse] judgment.” 
    Plumhoff, 134 S. Ct. at 2019
    .
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    We have concluded that the district court did not err when it “determine[d]” that
    Davenport failed to establish the defense of qualified immunity, so he has not
    “irretrievably lost” anything to which he was entitled. As a result, for us to
    consider whether the amended complaint states a claim would be an inappropriate
    adventure into “the merits of the action,” which are “completely separate” from
    this interlocutory appeal. Davenport’s argument that the district court erred when it
    ruled that the amended complaint states a claim must await adjudication on appeal
    from a final judgment.
    IV. CONCLUSION
    We AFFIRM the order denying Davenport qualified immunity.
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