“[We can]not accede to a defendant’s request that we review [the district court’s] evidence-sufficiency determination on appeal.”
How later courts described this case
- “[We can]not accede to a defendant’s request that we review [the district court’s] evidence-sufficiency determination on appeal.”
- “[B]ecause this is an interlocutory appeal, we are not free to revisit the district court’s conclusions as to ‘which facts a party may, or may not, be able to prove at trial.’” (quoting George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013))
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION
JUN 25 2026
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN ESPINOSA, Nos. 25-1623
Plaintiff - Appellee, D.C. No.
3:21-cv-00205-ART-CLB
v. District of Nevada,
Reno
WILLIAM GITTERE, Warden; et al.,
MEMORANDUM*
Defendant - Appellants,
NEVADA DEPARTMENT OF
CORRECTIONS; et al.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Anne R. Traum, District Judge, Presiding
Submitted June 23, 2026**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: S.R. THOMAS, KOH, and H.A. THOMAS, Circuit Judges.
Plaintiff-Appellee, Benjamin Espinosa, sued Defendants-Appellants,
William Gittere (the Warden of Ely State Prison) and a group of Ely State Prison
officials, under 42 U.S.C. § 1983, alleging that they violated his Eighth
Amendment rights when they failed to prevent food contamination. Espinosa also
sued Gittere under 42 U.S.C. § 1983 for First Amendment retaliation. Defendants
appeal the district court’s denial of qualified immunity. Because the parties are
familiar with the facts and history of this case, we need not recount them here. We
dismiss this appeal for lack of appellate jurisdiction.
Ordinarily, “a district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final decision’ within the
meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The district court’s determination
that the record “raise[s] a genuine issue of fact” is “not a ‘final decision’” under
28 U.S.C. § 1291. Johnson v. Jones, 515 U.S. 304, 313 (1995). Therefore, we
lack appellate jurisdiction where the appeal presents “only a question of ‘evidence
sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.” Id.
Our jurisdiction “ultimately turns on the nature of the defendant’s argument on
appeal.” Estate of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021).
2
Defendants’ argument on appeal of the denial of qualified immunity for the
Eighth Amendment claim challenges the district court’s conclusion that resolving
this claim requires “credibility determinations” as to whether Defendants were
aware that their protective measures against food contamination were ineffective.
That conclusion is unreviewable in this interlocutory posture. See Nicholson v.
City of Los Angeles, 935 F.3d 685, 693 (9th Cir. 2019) (“[B]ecause this is an
interlocutory appeal, we are not free to revisit the district court’s conclusions as to
‘which facts a party may, or may not, be able to prove at trial.’” (quoting George v.
Morris, 736 F.3d 829, 834 (9th Cir. 2013))).
On appeal, Gittere raises fact-based challenges regarding Espinosa’s First
Amendment retaliation claim. Gittere challenges whether Espinosa’s kites and
grievances are sufficient to establish Gittere’s knowledge of and involvement in
Espinosa’s transfer to the infirmary, and whether the district court correctly
concluded Espinosa raised a genuine dispute of fact as to whether that transfer
served a legitimate penological interest. We similarly lack jurisdiction to evaluate
these arguments. See Estate of Anderson, 985 F.3d at 731 (“[We can]not accede to
a defendant’s request that we review [the district court’s] evidence-sufficiency
determination on appeal.”).
3
The argument advanced by Defendants that there is no clearly established
law relies on factual disputes presented as legal arguments. That “does not give
rise to appellate jurisdiction.” Singh v. City of Phoenix, 124 F.4th 746, 756 (9th
Cir. 2024) (emphasis omitted).
We decline to consider any arguments raised for the first time on appeal, and
not presented to the district court. El Paso City v. Am. W. Airlines, Inc. (In re Am.
W. Airlines, Inc.), 217 F.3d 1161, 1165 (9th Cir. 2000).
DISMISSED.
4