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United States Court of Appeals,
Fifth Circuit.
No. 93-9095
Summary Calendar.
Louie ARMSTRONG, Plaintiff-Appellee,
v.
TEXAS STATE BOARD OF BARBER EXAMINERS, et al., Defendants,
William E. Maddox, et al., Defendants-Appellants.
Sept. 6, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before JOLLY, SMITH, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
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
1

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.
In the end, the two motions are only distinguishable because
they are brought under different rules and are guided by different
standards of review.1 These asserted differences are, however,
illusory. The motion to dismiss, brought before any discovery was
conducted in the case, is primarily a vehicle to test the
sufficiency of the pleadings as to qualified immunity. See Jackson
v. City of Beaumont, 958 F.2d 616, 168 (5th Cir.1992). That motion
was denied. The second motion, although styled a motion for
summary judgment was simply another motion addressing the
pleadings, as evidenced by the defendants' motion to stay
discovery. Under these unique circumstances, the two motions are
1This is the only difference identified by the defendants in
the supplemental brief requested by the court to address the
implications of Phillips v. Montgomery County.
2