Padgett v. Wright

• Decision Date: 20 November 2009
• Docket Number: No. 08-16720.,08-16720.
• Parties: Joseph PADGETT; Darla Padgett, Plaintiffs-Appellees, v. A. Curtis WRIGHT, Defendant-Appellant, and Brian Loventhal; Lisa M. Rice, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

587 F.3d 983

Joseph PADGETT; Darla Padgett, Plaintiffs-Appellees, v. A. Curtis WRIGHT, Defendant-Appellant, and Brian Loventhal; Lisa M. Rice, Defendants.

No. 08-16720.

United States Court of Appeals, Ninth Circuit.

Submitted October 5, 2009.^*

Filed November 20, 2009.

Todd H. Master, Redwood City, CA, for the defendant-appellant.

M. Jeffery Kallis, Andrew V. Stearns, and Steven M. Berki, San Jose, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:04-cv-03946-JW.

Before: MARY M. SCHROEDER and MARSHA S. BERZON, Circuit Judges, and LYLE E. STROM,^** District Judge.

ORDER AND OPINION ORDER

The mandate in this case and the opinion filed on October 14, 2009, are hereby withdrawn. The opinion filed concurrently with this order will replace the October 14, 2009, opinion, and mandate shall issue forthwith.

OPINION

PER CURIAM:

A. Curtis Wright appeals the district court's denial of his motion for summary judgment on the ground of qualified immunity in this § 1983 action. After this qualified immunity appeal was filed, the case went to trial, and a jury found Wright liable to appellee Joseph Padgett for deprivation of his First Amendment rights. We dismiss this appeal.

Generally, denials of summary judgment are not appealable. See, e.g., Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 693-94 (9th Cir.1992). The Supreme Court has recognized a narrow exception for a district court's denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The reasoning behind this departure from the general rule is that qualified immunity is "an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. 2806. Although a pretrial appeal of an order denying qualified immunity normally divests the district court of jurisdiction to proceed with trial, the district court may certify the appeal as frivolous and may then proceed with trial, as the district court did here.¹ See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.1992).

Wright's interest in immediately appealing the district court's denial of qualified immunity was an interest in avoiding "stand[ing] trial or fac[ing] the other burdens of litigation." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806. Because the trial has already occurred, there is no longer any compelling reason for us to deviate from the general rule preventing us from reviewing denials of summary judgment. "Since the appeal was taken before the trial, the only ruling that it could challenge was the ruling that [Wright] must stand trial.... Since all that was at stake in the appeal was whether [Wright] must stand trial, the trial mooted the appeal by eliminating the stake." Chan v. Wodnicki, 67 F.3d 137, 140 (7th Cir.1995).

It would be particularly inappropriate for us to hear this appeal, as it focuses entirely on the threshold question of whether a constitutional violation occurred. Wright's opening brief makes no argument as to whether he is entitled to qualified immunity even if the facts shown by the plaintiffs make out a violation of a constitutional right, as it fails to address "whether the right at issue was `clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).² By now, however, a jury has found that Wright did violate Joseph Padgett's constitutional rights. The denial of a motion for summary judgment is usually not reviewable even after a full trial on the merits. See, e.g., Price v. Kramer, 200 F.3d 1237, 1243 (9th Cir. 2000). There is an exception to this rule where the denial of summary judgment turned on a purely legal question, rather than a disputed factual issue that went to the jury. See Pavon v. Swift Transp. Co., Inc., 192 F.3d 902, 906 (9th Cir.1999). This exception is not here applicable, as the jury verdict concerned precisely the issue that was the subject of Wright's qualified immunity appeal-whether Wright violated Padgett's First Amendment rights.

Wright can obtain review of the jury verdict by appealing it once final judgment is entered. We will not entertain a prejudgment qualified immunity appeal asking us to decide the same question a jury has already decided. We thus dismiss the appeal.

The Padgetts ask us to sanction Wright for filing a frivolous appeal. Fed. R.App. P. 38 ("[I]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee."). Because their request was not separately filed, we deny the request. See Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 709 (9th Cir.2004) ("A request made in an appellate brief does not...