Napolitano v. Flynn

• Decision Date: 22 November 1991
• Docket Number: No. 213,D,213
• Citation: 949 F.2d 617
• Parties: Dean NAPOLITANO, Plaintiff-Appellee, v. Kim FLYNN, individually and Sheila Prue, individually and Stonewall, Inc., Defendants, Kim Flynn, individually and Sheila Prue, individually, Defendants-Appellants. ocket 91-7508.
• Court: U.S. Court of Appeals — Second Circuit

Page 617

949 F.2d 617

Dean NAPOLITANO, Plaintiff-Appellee, v. Kim FLYNN, individually and Sheila Prue, individually and Stonewall, Inc., Defendants, Kim Flynn, individually and Sheila Prue, individually,

Defendants-Appellants.

No. 213, Docket 91-7508.

United States Court of Appeals, Second Circuit.

Argued Oct. 1, 1991.

Decided Nov. 22, 1991.

Thomas C. Costello, Brattleboro, Vt., for plaintiff-appellee.

James F. Carroll (Powers, English & Carroll, of counsel) Middlebury, Vt., for defendants-appellants.

Before CARDAMONE, WALKER and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Plaintiff Dean Napolitano ("Napolitano") sued two police officers (the "Officers"), alleging that they had violated his rights under federal law (42 U.S.C. §§ 1983, 1985, 1986, and 1988), and his rights under Vermont state law as well. The suit was brought against the Officers in both their official and individual capacities.

The Officers moved for summary judgment, asserting immunity from suit in both their official and individual capacities. The United States District Court for the District of Vermont (Billings, Chief Judge) granted the Officers' motion for immunity from suit in their official capacities, but denied their motion for immunity in their individual capacities. The Officers now appeal.

We disagree with the district court's conclusion that the Officers were not entitled to immunity from suit in their individual capacities. We therefore reverse the order of the district court insofar as the order denied summary judgment to the Officers in their individual capacities, and remand for further proceedings.

BACKGROUND

On November 22, 1986, Napolitano, who was then eighteen years old, travelled with several friends of about the same age, from their homes in Massachusetts to Brattleboro, Vermont. The group planned to spend the evening taking advantage of Vermont's liberal drinking laws, and then stay overnight at a local motel. ¹ When they arrived in Vermont, a woman in the group named Donna Linnehan paid and registered for two rooms at the Colonial Motel in Brattleboro. The motel assigned rooms 265 and 266 to the group. After leaving their luggage in the rooms, several members of the group went into town to begin the evening's festivities.

The group journeyed to "Flat Street," a local Brattleboro bar, where they consumed an unknown quantity of alcoholic beverages. The group left Flat Street shortly before 2 a.m. Upon returning to the Colonial Motel, the group discovered that Donna Linnehan and an unidentified individual were now occupying room 265, and that the door to the room was locked. Members of the group demanded entry to the room, and began banging on the door to gain Linnehan's attention.

Disturbed by the commotion, Linnehan telephoned the front desk of the motel. August Schneider, who was in charge of the motel that evening, answered her call. Linnehan asked Schneider to tell the crowd to leave the motel. Schneider notified the Brattleboro police department, requesting a police officer to help him deal with the unruly crowd. The department dispatched the defendant Officers to the motel.

First to arrive was Officer Flynn, followed shortly by Officer Prue. Schneider advised the Officers that the crowd in rooms 265 and 266 was raising a ruckus, and asked them to expel the group from the motel. The Officers went to room 266, where they advised Napolitano and his friends that, at the request of the Colonial Motel management, they would have to leave the motel. Significantly, the Officers did not take any members of the group into police custody, nor did they place anyone under arrest.

The group packed up and set out to return to Massachusetts. Napolitano decided to ride with his friend Tim Andrews, who had been one of his drinking companions that evening. At approximately 3:25 a.m., Andrews fell asleep at the wheel, and his car crashed into a tree. Napolitano suffered a serious skull fracture. A blood alcohol test taken shortly after the accident registered Andrews' blood alcohol content at .09 percent.

Napolitano sued Stonewall, Inc. (the owner of the Colonial Motel), and Flat Street in All defendants joined in a petition to remove the case to the United States District Court for the District of Vermont. Jurisdiction for removal was based on the federal claims asserted against the Officers, Campbell, and the Town of Brattleboro, as well as the complete diversity of citizenship between Napolitano and all defendants.

                Vermont Superior Court.   Later, he amended his complaint to add claims against the Officers and the Brattleboro police chief, Charles Campbell, in both their individual and official capacities, and the town of Brattleboro as well.   The amended complaint alleged negligence and recklessness against all defendants, and it also included charges that the Officers, Campbell and the town of Brattleboro had violated Napolitano's rights under 42 U.S.C. §§ 1983, 1985, 1986 and 1988
                

After extensive discovery, all parties stipulated to the dismissal of Flat Street as a party-defendant. The remaining defendants (Stonewall, the Officers, Campbell, and the Town of Brattleboro) moved for summary judgment on all claims, state and federal. Napolitano also cross-moved to amend his complaint to state more clearly the basis of his federal law claims.

Following oral argument on the motions, the district court denied Stonewall's motion for summary judgment. The court granted summary judgment to the town of Brattleboro and also to Campbell in both his individual and official capacities. The court also granted summary judgment to the Officers in their official capacities, but declined to grant them summary judgment in their individual capacities. Finally, the court denied Napolitano's cross-motion to amend his complaint. The Officers now appeal the district court's denial of their motion for summary judgment in their individual capacities, and this is the sole issue on appeal.

DISCUSSION

A. Federal Law Claims

As noted above, Napolitano sought leave to amend the federal law claims in his complaint. Without any explanation, the district court denied this motion. Napolitano does not seek to appeal this interlocutory order. See D'Ippolito v. Cities Serv. Co., 374 F.2d 643, 648 (2d Cir.1967) (order denying leave to amend complaint not appealable until final judgment entered in district court); see also 15 Charles A. Wright, et al., Federal Practice and Procedure § 3914 (1976). In his brief to this court, Napolitano now concedes that his federal law claims do not sufficiently allege a claim for relief. Based on his concession, we hold that the federal law claims in his complaint must be dismissed.

Our holding on this issue should not be read to signal a retreat from our view that a court should not dismiss a complaint without first giving the claimant an opportunity to be heard. See Perez v. Ortiz, 849 F.2d 793, 797-98 (2d Cir.1988). However, when, as here, a plaintiff admits that his complaint makes no cognizable claim for relief under federal law, we need not order a hearing to ascertain what we already know. We therefore remand Napolitano's federal law claims to the district court with an instruction to dismiss that portion of the complaint. ²

B. State Law Claims

Because there is diversity of citizenship between Napolitano and all defendants, we may still consider whether the Officers are entitled to summary judgment on Napolitano's state law claims. We must address initially whether the district court's denial of the Officer's motion for summary judgment is an appealable order.

The Officers claim that the doctrine of qualified immunity entitles them to summary Generally, a court of appeals has jurisdiction of appeals only from "final" orders of a district court. 28 U.S.C. § 1291. An exception to the finality rule exists if the district court's order falls within

                judgment in their individual capacities.   Although the substantive law of Vermont governs the applicability of qualified immunity to Napolitano's state law claims, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), federal law determines the appealability of the district court's order.  Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199, 108 S.Ct. 1717, 1720, 100 L.Ed.2d 178 (1988)
                

that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). An appealable "collateral order" under Cohen thus has two characteristics. First, the order must resolve a question which is separate from the merits of the plaintiff's action. Second, the question must be effectively unreviewable if an appeal has to await a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).

The appealability of an interlocutory order denying a claim of qualified immunity was first addressed in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Mitchell held that qualified immunity is an "immunity from suit rather than a mere defense to liability," and is "effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at 2815 (emphasis in original). Immunity from suit recognizes a right not to stand trial at all. The question whether a defendant is entitled to qualified immunity from suit is thus separate from the merits of the underlying action. Id. at 528, 529, 105 S.Ct. at 2816, 2817. If a defendant's claim of qualified immunity is erroneously denied, he will lose forever his right not to stand trial unless he can obtain immediate appellate review. Id. at 527, 105 S.Ct. at 2816. A denial of a claim of qualified...