“[A] denial of summary judgment without 16 prejudice is sufficiently final to support jurisdiction over an interlocutory appeal . . . because the 17 purpose of qualified immunity is ‘not merely to avoid standing trial, but also to avoid the burdens 18 of such pretrial matters as discovery.’” (quoting Behrens, 516 U.S. at 308 )
How later courts described this case
- “[A] denial of summary judgment without 16 prejudice is sufficiently final to support jurisdiction over an interlocutory appeal . . . because the 17 purpose of qualified immunity is ‘not merely to avoid standing trial, but also to avoid the burdens 18 of such pretrial matters as discovery.’” (quoting Behrens, 516 U.S. at 308 )
- “[A] 2 denial of summary judgment without prejudice is sufficiently final to support jurisdiction over an 3 interlocutory appeal . . . because the purpose of qualified immunity is ‘not merely to avoid 4 standing trial, but also to avoid the burdens of such pretrial matters as discovery.’” (quoting 5 Behrens, 516 U.S. at 308 )
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION AUG 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANGELO DAHLIA, No. 10-55283
Plaintiff - Appellee, D.C. No. 2:09-cv-08453-MMM-
JEM
v.
TIM STEHR, individually, MEMORANDUM *
Defendant - Appellant,
and
CITY OF BURBANK, a municipal
corporartion; OMAR RODRIGUEZ,
individually and as a Lieutenant of the
Burbank Police Department; JOHN
MURPHY, individually and as a
Lieutenant of the Burbank Police
Department; EDGAR PENARANDA,
individually and as a Sergeant of the
Burbank Police Department; JOSE
DURAN, individually and as a Sergeant of
the Burbank Police Department; CHRIS
CANALES, individually and as a
Detective of the Burbank Police
Department,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted May 8, 2012 **
Pasadena, California
Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.
Defendant Tim Stehr appeals from the district court’s denial of his motion
for summary judgment on the ground that it was premature.1 We review de novo
the denial of summary judgment where qualified immunity is at issue, KRL v.
Estate of Moore, 512 F.3d 1184, 1188-89 (9th Cir. 2008), and we reverse.
1. We have jurisdiction under 28 U.S.C. § 1291 to review Stehr’s
interlocutory appeal because his motion asserted qualified immunity. Wilkins v.
City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003). Although the district court
**
The panel unanimously concludes this appeal is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Stehr moves to supplement the excerpts of record on appeal with the
district court order and subsequent notice of appeal in Plaintiff Angelo Dahlia’s
related appeal (No. 10-55978), and requests that we take judicial notice of those
documents. We grant the request because those documents are judicial records,
Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), they relate to
proceedings that involve the same parties reflected in those documents, Egan v.
Teets, 251 F.2d 571, 577-79 (9th Cir. 1957), and those judicial developments
“affect our consideration of the various issues presented,” Bryant v. Carleson, 444
F.2d 353, 357 (9th Cir. 1971). However, we decline to supplement the excerpts of
record on appeal on the ground that it is unnecessary.
dismissed Stehr’s motion without expressly discussing the qualified immunity
question, it implicitly denied the qualified immunity claim. Giebel v. Sylvester,
244 F.3d 1182, 1186 n.6 (9th Cir. 2001). Even where, as here, there are issues of
fact in dispute, “we can determine whether the denial of qualified immunity was
appropriate by assuming that the version of the material facts asserted by [Dahlia]
is correct.” Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001).
That the district court denied Stehr’s motion without prejudice does not
defeat jurisdiction. Under Behrens v. Pelletier, 516 U.S. 299 (1996), a denial of
summary judgment without prejudice is sufficiently final to support jurisdiction
over an interlocutory appeal, id. at 307-08, because the purpose of qualified
immunity is “not merely to avoid standing trial, but also to avoid the burdens of
such pretrial matters as discovery,” id. at 308 (citing Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)) (emphasis in original) (internal quotation marks omitted). See
also Moss v. U.S. Secret Service, 572 F.3d 962, 974 (9th Cir. 2009) (declining to
exercise jurisdiction over an interlocutory appeal only because, unlike here, there
was no imminent discovery due to a stay).
2. Stehr is entitled to qualified immunity because, as Dahlia concedes, we
have not previously decided the question of whether being placed on
administrative leave with pay constitutes an adverse employment action. See
3
Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803 n.7 (9th Cir. 2009)
(declining to reach the question of whether administrative leave constituted an
adverse employment action). Dahlia’s purported right protecting him from
placement on administrative leave was thus not “clearly established” at the time of
the challenged conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting
Harlow v. Fitzgerland, 457 U.S. 800, 818 (1982)). In light of our silence, and the
unanimous weight of authority from other jurisdictions holding that administrative
leave does not constitute an adverse employment action, the contours of Dahlia’s
purported right were not sufficiently clear that an official in Stehr’s position would
have “understood that what he is doing violates that right.” Id. at 2083.
REVERSED.
4