## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 08-3105

________________ Ranadhir Mitra, Ph.D., Appellee,

v. Curators of the University of Missouri, Defendant, Douglas Anthony, M.D.; Forrest “Bud” Smith, Appellants. * * * * * * * * * * * * * * * Appeal from the United States District Court for the Western District of Missouri. [UNPUBLISHED]

________________ Submitted: March 11, 2009 Filed: April 9, 2009

________________ Before GRUENDER, ARNOLD and BENTON, Circuit Judges.

________________ PER CURIAM. Ranadhir Mitra, a professor at the Univ ersity of Missouri in the Pathology and Anatomical Sciences Department, sued the University, Douglas Anthony, the Department’s chair, and Bud Smith, the De partment’s administrator, alleging that-2- Anthony and Smith created a hostile work e nvironment and discriminated against him based on his age and that the University was vicariously liable for Anthony’s and Smith’s conduct. Mitra contended that Anthony’s and Smith’s acts infringed on his substantive due process and equal protection rights and tortiously interfered with his employment contract in violation of Missouri law. The University, Anthony and Smith moved to dismiss Mitra’s complaint, arguing that Mitra’s substantive due pr ocess and equal protection claims brought under 42 U.S.C. § 1983 failed to state a cl aim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6), and that the c ourt should decline to exercise supplemental jurisdiction over the remaining state law claims, see 28 U.S.C. § 1367(c)(3). Anthony and Smith also argued they we re “entitled to qualified immunity . . . because Plaintiff fails to state a claim under § 1983.” In a written order, the district court gran ted the motion to dismiss as to Mitra’s equal protection claim and denied the motion as to Mitra’s other claims. In so doing, the district court did not explicitly engage in a qualified immunity analysis, mention the term “qualified immunity,” or cite to any cases decided on qualified immunity grounds. Nevertheless, Anthony and Smith f iled this interlocutory appeal, claiming that the district court effectively deniedtheir qualified immunity claim by rejecting their argument that the facts alleged by M itra fail to make out a violation of a constitutional right. See Pearson v. Callahan , 555 U.S. ---, 129 S. Ct. 808, 815-16 (2009) (explaining that one step in the qua lified immunity analysis is determining “whether the facts that a plaintiff has . . . shown make out a violation of a constitutional right” (internal c itation omitted)). Because they allege that the district court denied their qualified immunity clai m, Anthony and Smith argue that we have appellate jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth , 472 U.S. 511, 530 (1985) (“[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an app ealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”).1 Here, as in Washington , “while the issue of qualif ied immunity was raised in appellants’ motion [to dismiss] and memorandum in support thereof, it certainly was not emphasized.” 46 F.3d at 41 n.3. In Washington , the prison officials devoted only three sentences of their memorandum in support of the motion for summary judgment to the issue of qualified immunity. Id. Here, Anthony and Smith devoted only one sentence of their motion to dismiss and six se ntences in one paragraph of their twenty- -3- We cannot agree with Anthony and Sm ith’s claimed basis for appellate jurisdiction because we are bound by our decisions in Washington v. Wilson , 46 F.3d 39 (8th Cir. 1995), and Schatz Family ex rel. Schatz v. Gierer , 346 F.3d 1157 (8th Cir. 2003) (per curiam). In Washington , prison officials sought summary judgment on a prisoner’s § 1983 claim against them fo r allegedly violating a constitutionally protected liberty interest. 46 F.3d at 40. The prison officials “defended the action on the merits” and also argued that they were entitled to qualified immunity. Id. at 40, 41 n.3. The district court partially denied the prison officials’ motion, but in so doing, the court did not mention the issue of qualified immunity. Id. at 40. With respect to the prison officials’ interlocutory appeal, we held that “[i]n the absence of some reference from the district court on the issue [of qualified immunity], we lack jurisdiction.” Id. at 41. Similarly, in Schatz , employees of the Missouri Department of Family Services raised the issue of qua lified immunity in a motion to dismiss. 346 F.3d at 1159. In ruling on the motion, “[ t]he district cour t announced the proper standard for addressing qualified immunity atthe Rule 12(b)(6) stage . . . but failed to engage in any further discussion or analysis of the issue.” Id. at 1159-60. Because “there was no determination by the district court on the qualified immunity issue,” we held “that we have no jurisdiction to review the district court’s order.” Id. at 1160. Thus, we dismissed the employees’ interl ocutory appeal, recognizing that “[a]lthough the district court’s complete denial of de fendants’ motion to dismiss implies the denial of qualified immunity, . . . such an inference is insufficient for an interlocutory appeal.” Id. Here, we are faced with a nearly id entical situation in which the district court did not mention qualified immunity, nor did it cite a single case decided on qualified immunity grounds in its order. 1 Because we are bound to follow our priorsix page memorandum in support of the moti on to dismiss to the issue of qualified immunity.

2 We encourage the district court to “rule promptly on the issue of qualified immunity.” Washington , 46 F.3d at 41; see also Schatz , 346 F.3d at 1160 (“[T]he Supreme Court repeatedly has emphasized th e need to address qualified immunity at the earliest possible stage in the litigation.”). -4- decisions in Washington andSchatz , we dismiss Anthony and Smith’s interlocutory appeal for lack of appellate jurisdiction. 2

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