## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 26 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALFRED MILTON EVANS, an individual; SOUTHEASTERN OKLAHOMA FAMILY SERVICES, INC., a corporation,

Plaintiffs-Appellees,

v. MIKE FOGARTY, in his individual capacity, as well as in his official capacity as Chief Executive Officer for the Oklahoma Health Care Authority; TERRIE FRITZ, in her individual capacity, as well as in her official capacity as Director of Behavioral Health for the Oklahoma Health Care Authority; DANA BROWN, in her individual capacity, as well as in her official capacity as Legislative Liaison from the Oklahoma Health Care Authority,

Defendants-Appellants, and DR. LYNN MITCHELL, in his individual capacity, as well as in his official capacity as State Medicaid Director for the Oklahoma Health Care Authority; T.J. BRICKNER, JR., in his official capacity as Vice-Chairman for the Oklahoma Health Care Authority; RONALD ROUNDS, O.D., in his official capacity as member of the Oklahoma Health Care Authority Board of Directors; WAYNE HOFFMAN, in his official capacity as member of the Oklahoma Health Care Authority Board of Directors; JERRY HUMBLE, in his official capacity as member of the Oklahoma Health No. 04-6007 (W.D. Oklahoma) (D.C. No. 01-CV-252-H)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

-2- Care Authority Board of Directors; CHARLES ED McFALL, in his official capacity as Chairman of the Oklahoma Health Care Authority Board of Directors; GEORGE MILLER, in his official capacity as member of the Oklahoma Health Care Authority Board of Directors; LYLE ROGGOW, in his official capacity as member of the Oklahoma Health Care Authority Board of Directors,

Defendants.

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.

Defendants Mike Fogarty, Terrie Fritz and Dana Brow n, employees of the Oklahoma Health Care Authority (“OHCA”), seek an interlocutory appeal of the district court’s order denying their request to fil e a third motion for summary judgment asserting that they are entitled to qualif ied immunity from plaintiffs’ 42 U.S.C. § 1983 lawsuit. For the reasons that follow , we conclude we lack jurisdiction over this appeal and dismiss it.1 The remaining defendants were all connected to OHCAin various

capacities. -3- Plaintiffs, Alfred Milton Evans, the Southeastern O klahoma Family Services, Inc. (“SOFS”), providers of mental healthcare in southeastern Oklahoma, as well as some SOFS patients, brought th is § 1983 action against defendants and others, 1 alleging, inter alia , that their First Amendment rights were violated when defendants retaliated against th em for speaking publicly about various issues affecting Oklahoma’s Medicaid system

. The resolution of this appeal requires a general un derstanding of the lengthy history of this litigation: Plaintiffs ini tially successfully obtained a preliminary injunction against defendants barring them from continuing to violate plaintiffs’ constitutional rights. Defendants firs t raised the defense of qualified immunity in their answer to plaintiffs’ third amend ed complaint. Appellants’ App. at 56-63. They then filed a motion to dismiss based on qualified immunity. Appellees’ App. to Mot. to Dismiss at tab 3. The d istrict court denied defendants’ motion to dismiss and defendants did no t attempt to appeal. Defendants then filed a motion for summary judgmenton various grounds with no mention of a defense of qualified immunity. They subsequently withdrew the motion. Defendants thereafter filed eight furt her separate motions for summary judgment against plaintiffs. None of those motions raised the defense-4-

of qualified immunity either. The court denied the se motions and defendants did not attempt an appeal. The parties subsequently filed a joint pretrial rep ort which also failed to raise a defense of qualified immunity. A five-day trial in April 2003 resulted in a jury verdict in favor of plaintiffs. Defendants di d not raise the issue of qualified immunity in any of their trial or post-trial motion s. However, for reasons not relevant here, the distric t court later granted defendants’ motion for a new trial. Prior to this second trial, defendants sought permission from the district court to file yet another motion for summary judgment seeking to raise specifically the defense of qualified immunity. The district court denied the request, stating as follo ws:

To the extent defendants seek leave to assert a qua lified immunity defense by summary judgment motions to be filed, their motion is DENIED. This case has already gone to tr ial once. The pretrial order entered in the case did not preserve or assert the defense of qualified immunity. While a second tria l need not necessarily involve the same witnesses and proof, the Court concludes it is inappropriate, in the circumstances of this case, to permit defendants to raise new and different legal issues or defenses not at issue in the first trial. Order, Appellees’ App. to Mot. to Dismiss at tab 11

. Defendants seek to effect an appeal of that order d enying them permission to file another motion for summary judgment asserti ng the defense of qualified immunity. They argue the order is tantamount to a final decision denying them2Although the defendants sought to effect this inter locutory appeal prior to

the conclusion of the second trial, we permitted th e trial to proceed based upon the district court’s certification that the appeal was frivolous and not taken in good faith. -5- the defense of qualified immunity and, as such, is appealable on an interlocutory basis under Mitchell v. Forsyth , 472 U.S. 511 (1985). Meanwhile, the case has been fully tried to a concl usion for the second time, resulting again in a jury verdict adverse to defendants. In the second trial, as both parties concede, defendants were able to ra ise a defense of qualified immunity. Indeed, they concede that the issue was included in the pretrial order and was the subject of extensive Fed. R. Civ. P. 50 written submissions, which apparently remain pending before the district court. 2 Plaintiffs seek dismissal of this appeal for lack o f appellate jurisdiction. We agree with plaintiffs. While the denial of qual ified immunity can be an appealable collateral order, see Digital Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867 (1994); Mitchell , 472 U.S. at 526, the district court’s order in th is case did not address any qualified immunity issue. It was simply a pretrial order denying defendants’ request to file a motion. See Edwards v. Cass County , 919 F.2d 273 (5th Cir. 1990). Defendants will have a f ull opportunity to address any properly preserved qualified immunity issue on appe al from the adverse jury verdict reached in, and any adverse post-trial ruli ngs with respect to, the second-6-

trial. Defendants’ assertion that they are somehowprejudiced by our refusal to hear this interlocutory appeal because they will otherwise be required to post a bond in order to gain review of their qualified imm unity defense is unavailing. It does not transform an otherwise unappealable order into an appealable one, and it does not serve the core purpose for an interlocutory appeal set out in Mitchell

. To the contrary, any remand for proceedings on the summary judgment motion at this late date will add both delay and expense, and , at best, probably only postpone the time when an appeal bond will have to be posted. Thus, as a practical matter, the attempted appeal is effective ly moot. Accordingly, in the peculiar circumstances of this case, we lack jurisdiction to review on an interlocutory basis the district co urt’s order denying defendants permission to file a motion for summary judgment. Appeal DISMISSED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge