12-847 Walker v. Suffolk County Police Dep’t

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 SUMMARY ORDER 4 5 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 6 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 7 BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 8 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 9 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 10 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 11 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 12 13 14 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 15 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16 28 thday of January, two thousand thirteen. 17 18 Present: RALPH K. WINTER, 19 ROSEMARY S. POOLER, 20 DENNY CHIN, 21 Circuit Judges

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_____________________________________________________ 23 24 THOMAS WALKER, IV, 25 26 Plaintiff-Appellee

, 27 28 -v- 12-847 29 30 SUFFOLK COUNTY POLICE DEPARTMENT, STEPHEN JACOBS, 31 RICHARD PALAZZOLO, 32 33 Defendants-Appellants

. 34 35 UNITED STATES MARSHALS SERVICES, WATERBURY POLICE 36 DEPARTMENT, 7TH PRECINCT, 6TH PRECINCT, SUFFOLK 37 COUNTY POLICE DEPARTMENT MASTIC/SELDEN, NEW YORK, 38 39 Defendants

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_____________________________________________________ 41 42 Appearing for Appellants: ARLENE S. ZWILLING, Assistant County Attorney, for Dennis 43 M. Cohen, Suffolk County Attorney, Hauppauge, NY. 44 45 Appearing for Appellee: CHRISTOPHER D. BELELIEU (Stuart W. Gold, Jacob M. 46 Honigman, on the brief ) Cravath, Swaine & Moore LLP, New 47 York, NY. 482 Appeal from the United States District C ourt for the Eastern District of New York 1 (Gleeson, J.). 2 3 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 4 AND DECREEDthat the order of said District Court be and it hereby is AFFIRMED in part 5 and DISMISSEDin part. 6 7 Defendants-Appellants (“Defendants”) appeal from the district court’s February 3, 2012 8 denial of summary judgment on qualified immunity grounds in a suit by Plaintiff-Appellee 9 (“Plaintiff”) asserting a claim under 42 U.S.C. § 1983 for an unconstitutional denial of medical 10 care. We assume the parties’ familiarity with the underlying facts, procedural history, and 11 specification of issues for review. 12 13 “Qualified immunity protects public officials from liability for civil damages when one 14 of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, 15 or (b) it was objectively reasonable for the defendant to believe that his action did not violate 16 such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation 17 marks omitted). “Orders denying summary judgment are generally not immediately appealable 18 ‘final decisions’ under 28 U.S.C. § 1291.” Bolmer v. Oliveira , 594 F.3d 134, 140 (2d Cir. 2010). 19 “Pursuant to the collateral order doctrine, however, we have jurisdiction over interlocutory 20 appeals of orders denying claims of qualified immunity[.]” Id. “[T]o avoid running afoul of the 21 collateral order doctrine’s requirement that a reviewable order involve a claim of right separable 22 from, and collateral to, rights asserted in the action, we may review immunity denials only to the 23 narrow extent they turn on questions of law.” Id. (internal brackets and quotation marks 24 omitted). On appeal, we look to “stipulated facts, or on the facts that the plaintiff alleges are 25 true, or on the facts favorable to the plaintiff th at the trial judge concluded the jury might find.” 26 Salim v. Proulx , 93 F.3d 86, 90 (2d Cir. 1996). 27 28 Defendants make two arguments on appeal: First, they argue that Plaintiff did not have a 29 “serious medical condition” and that, therefore, they did not unconstitutionally deny Plaintiff 30 medical care. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (discussing requirements for 31 a plaintiff’s unconstitutional denial of medical care claim). Alternately, Defendants claim that 32 their actions were objectively reasonable, becausePlaintiff was not in their custody and there is 33 not a clearly established right to medical care from non-custodial officials. The district court 34 found that there were disputed issues of fact relating to (1) whether Plaintiff had a “serious 35 medical need” and (2) whether Plaintiff was in Defendants’ custody. These factual issues are 36 material. See Bolmer, 594 F.3d at 140-41. As Defendants’ claim of qualified immunity turns 37 not on questions of law but on questions of fact , we lack jurisdiction to hear this appeal. 38 “[W]here the district court denied immunity on summary judgment because genuine issues of 39 material fact remained, we have jurisdiction to determine whether the issue is material , but not 40 whether it is genuine .” Bolmer, 594 F.3d at 140-41. 413 We have considered all of the remaining arguments of the Suffolk County Police 1 Department, Jacobs, and Palazzolo and find them without merit. Accordingly, the order of the 2 district court is AFFIRMED in part and DISMI SSED in part for lack of appellate jurisdiction. 3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7