12-847

Walker v. Suffolk County Police Dep’t

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 SUMMARY ORDER

5

6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

7 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

8 BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

9 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

10 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

11 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

12 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

13

14

15 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

16 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

28th 17 day of January, two thousand thirteen.

18

19 Present: RALPH K. WINTER,

20 ROSEMARY S. POOLER,

21 DENNY CHIN,

22 Circuit Judges.

23 _____________________________________________________

24

25 THOMAS WALKER, IV,

26

27 Plaintiff-Appellee,

28

29 -v- 12-847

30

31 SUFFOLK COUNTY POLICE DEPARTMENT, STEPHEN JACOBS, 

32 RICHARD PALAZZOLO,

33

34 Defendants-Appellants.

35

36 UNITED STATES MARSHALS SERVICES, WATERBURY POLICE 

37 DEPARTMENT, 7TH PRECINCT, 6TH PRECINCT, SUFFOLK 

38 COUNTY POLICE DEPARTMENT MASTIC/SELDEN, NEW YORK,

39

40 Defendants.

41 _____________________________________________________

42

43 Appearing for Appellants: ARLENE S. ZWILLING, Assistant County Attorney, for Dennis

44 M. Cohen, Suffolk County Attorney, Hauppauge, NY.

45 

46 Appearing for Appellee: CHRISTOPHER D. BELELIEU (Stuart W. Gold, Jacob M.

47 Honigman, on the brief) Cravath, Swaine & Moore LLP, New

48 York, NY.
2

1 Appeal from the United States District Court for the Eastern District of New York 

2 (Gleeson, J.).

3

4 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

5 AND DECREED that the order of said District Court be and it hereby is AFFIRMED in part

6 and DISMISSED in part. 

7

8 Defendants-Appellants (“Defendants”) appeal from the district court’s February 3, 2012

9 denial of summary judgment on qualified immunity grounds in a suit by Plaintiff-Appellee

10 (“Plaintiff”) asserting a claim under 42 U.S.C. § 1983 for an unconstitutional denial of medical

11 care. We assume the parties’ familiarity with the underlying facts, procedural history, and

12 specification of issues for review.

13

14 “Qualified immunity protects public officials from liability for civil damages when one

15 of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law,

16 or (b) it was objectively reasonable for the defendant to believe that his action did not violate

17 such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation

18 marks omitted). “Orders denying summary judgment are generally not immediately appealable

19 ‘final decisions’ under 28 U.S.C. § 1291.” Bolmer v. Oliveira, 594 F.3d 134, 140 (2d Cir. 2010). 

20 “Pursuant to the collateral order doctrine, however, we have jurisdiction over interlocutory

21 appeals of orders denying claims of qualified immunity[.]” Id. “[T]o avoid running afoul of the

22 collateral order doctrine’s requirement that a reviewable order involve a claim of right separable

23 from, and collateral to, rights asserted in the action, we may review immunity denials only to the

24 narrow extent they turn on questions of law.” Id. (internal brackets and quotation marks

25 omitted). On appeal, we look to “stipulated facts, or on the facts that the plaintiff alleges are

26 true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.” 

27 Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996). 

28

29 Defendants make two arguments on appeal: First, they argue that Plaintiff did not have a

30 “serious medical condition” and that, therefore, they did not unconstitutionally deny Plaintiff

31 medical care. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (discussing requirements for

32 a plaintiff’s unconstitutional denial of medical care claim). Alternately, Defendants claim that

33 their actions were objectively reasonable, because Plaintiff was not in their custody and there is

34 not a clearly established right to medical care from non-custodial officials. The district court

35 found that there were disputed issues of fact relating to (1) whether Plaintiff had a “serious

36 medical need” and (2) whether Plaintiff was in Defendants’ custody. These factual issues are

37 material. See Bolmer, 594 F.3d at 140-41. As Defendants’ claim of qualified immunity turns

38 not on questions of law but on questions of fact, we lack jurisdiction to hear this appeal. 

39 “[W]here the district court denied immunity on summary judgment because genuine issues of

40 material fact remained, we have jurisdiction to determine whether the issue is material, but not

41 whether it is genuine.” Bolmer, 594 F.3d at 140-41.
3

1 We have considered all of the remaining arguments of the Suffolk County Police

2 Department, Jacobs, and Palazzolo and find them without merit. Accordingly, the order of the

3 district court is AFFIRMED in part and DISMISSED in part for lack of appellate jurisdiction.

4

5 FOR THE COURT:

6 Catherine O’Hagan Wolfe, Clerk

7