The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH PADGETT; DARLA PADGETT,
Plaintiffs-Appellees,
v. No. 08-16720
A. CURTIS WRIGHT,
Defendant-Appellant, D.C. No.
5:04-cv-03946-JW
and OPINION
BRIAN LOVENTHAL; LISA M. RICE,
Defendants.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Submitted October 5, 2009*
San Francisco, California
Filed October 14, 2009
Before: Mary M. Schroeder and Marsha S. Berzon,
Circuit Judges, and Lyle E. Strom,** District Judge.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
14557
PADGETT v. WRIGHT 14559
COUNSEL
Todd H. Master, Redwood City, California, for the defendant-
appellant.
M. Jeffery Kallis, Andrew V. Stearns, and Steven M. Berki,
San Jose, California, for the plaintiffs-appellees.
OPINION
PER CURIAM:
A. Curtis Wright appeals the district court’s denial of his
motion for summary judgment on the ground of qualified
immunity in this § 1983 action. After this qualified immunity
appeal was filed, the case went to trial, and a jury found
Wright liable to appellee Joseph Padgett for deprivation of his
First Amendment rights. We dismiss this appeal as moot.
[1] Generally, denials of summary judgment are not appeal-
able. Jones-Hamilton Co. v. Beazer Materials & Servs., Inc.,
973 F.2d 688, 693-94 (9th Cir. 1992). The Supreme Court has
recognized a narrow exception for a district court’s denial of
qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). The reasoning behind this departure from the general
rule is that qualified immunity is “an immunity from suit
rather than a mere defense to liability; . . . it is effectively lost
if a case is erroneously permitted to go to trial.” Id. at 526.
Although a pretrial appeal of an order denying qualified
immunity normally divests the district court of jurisdiction to
proceed with trial, the district court may certify the appeal as
14560 PADGETT v. WRIGHT
frivolous and may then proceed with trial, as the district court
did here.1 See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.
1992).
[2] Wright’s interest in immediately appealing the district
court’s denial of qualified immunity was an interest in avoid-
ing “stand[ing] trial or fac[ing] the other burdens of litiga-
tion.” Mitchell, 472 U.S. at 526. Because the trial has already
occurred, there is no longer any compelling reason for us to
deviate from the general rule preventing us from reviewing
denials of summary judgment. “Since the appeal was taken
before the trial, the only ruling that it could challenge was the
ruling that [Wright] must stand trial. . . . Since all that was at
stake in the appeal was whether [Wright] must stand trial, the
trial mooted the appeal by eliminating the stake.” Chan v.
Wodnicki, 67 F.3d 137, 140 (7th Cir. 1995).
[3] It would be particularly inappropriate for us to hear this
appeal, as it focuses entirely on the threshold question of
whether a constitutional violation occurred. Wright’s opening
brief makes no argument as to whether he is entitled to quali-
fied immunity even if the facts shown by the plaintiffs make
out a violation of a constitutional right, as it fails to address
“whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct.” Pearson v. Calla-
han, 129 S. Ct. 808, 816 (2009) (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001)).2 By now, however, a jury has found
1
Wright applied to this court for a stay of trial. We denied his motion
without ruling on the merits of his appeal.
2
Wright’s belated attempt to argue, in a reply brief, that a reasonable
public official would not have thought Wright’s conduct was unconstitu-
tional does not remedy this problem. This court “will not ordinarily con-
sider matters on appeal that are not specifically and distinctly raised and
argued in appellant’s opening brief.” Int’l Union of Bricklayers & Allied
Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d
1401, 1404 (9th Cir. 1985). Moreover, Wright did not argue in his memo-
randum of points and authorities supporting his motion for summary judg-
ment before the district court that a reasonable public official would not
have thought his conduct was unconstitutional. “We will not . . . review
an issue not raised below unless necessary to prevent manifest injustice.”
Id.
PADGETT v. WRIGHT 14561
that Wright did violate Joseph Padgett’s constitutional rights.
While Wright can obtain review of the final judgment by
appealing it, we will not entertain a prejudgment qualified
immunity appeal asking us to decide the same question a jury
has already decided. We thus dismiss the appeal.
[4] The Padgetts ask us to sanction Wright for filing a friv-
olous appeal. Fed. R. App. P. 38 (“[I]f a court of appeals
determines that an appeal is frivolous, it may, after a sepa-
rately filed motion or notice from the court and reasonable
opportunity to respond, award just damages and single or dou-
ble costs to the appellee.”). Because their request was not sep-
arately filed, we deny the request. See Higgins v. Vortex
Fishing Sys., Inc., 379 F.3d 701, 709 (9th Cir. 2004) (“A
request made in an appellate brief does not satisfy Rule 38
. . . .” (quoting State of Cal. Emp. Dev. v. Taxel (In re Del
Mission Ltd.), 98 F.3d 1147, 1154 (9th Cir. 1996))).
The appeal is DISMISSED.