Opinion
02 Civ. 5804 (HB)
November 5, 2003
OPINION ORDER
At oral arguments on November 4, 2003 on a pending motion to dismiss on jurisdictional grounds, I learned, albeit without documents of any sort, that defendant had filed a notice of appeal from my earlier denial of summary judgment with respect to defendant Richards. That decision was based at least in part on qualified immunity grounds. No stay was obtained nor request made for one to the Court of Appeals.
Familiarity with the Court's two earlier decisions in this matter is presumed.
It is well-settled that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment."Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (emphasis added); see also McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 277 (2d Cir. 1999) ("The district court's denial of the qualified immunity defense on a summary judgment motion is an appealable final decision to the extent that the denial turns on an issue of law."). And it is also settled that "[a]s a general rule, once a notice of appeal has been filed, `it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.'" Kidder, Peabody Co., Inc. v. Maxus Energy Corp., 925 F.2d 556, 565 (2d Cir 1991) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). However, it could not be clearer that Richards' entitlement to qualified immunity depends very heavily on a factual determination, rather than an issue of law. Specifically, Palmer's due-process claim against defendant Richards relates to Palmer's allegation that Richards purposefully erased a portion of the tape recording of a disciplinary hearing that was allegedly favorable to Palmer. In their motion for summary judgment, defendants did not seriously contest that the tampering of the tape, if true, was illegal and qualified immunity would be inapplicable; instead, defendants largely presumed that the tape was merely defective and that Richards conducted the hearing properly. Clearly this is both a central issue and a fact issue. Thus, there is no merit to Richard's contention that his entitlement to qualified immunity turns on an issue of law — it is clear that the factfinder must determine whether or not he destroyed a portion of the tape. Where a district court determines that an appeal of a denial of qualified immunity is frivolous, the court may proceed to trial even in the face of an interlocutory appeal. See Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989); see also Chuman v. Wright 960 F.2d 104, 105 (9th Cir. 1992); Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991); Stewart v. Donges, 915 F.2d 572, 576-78 (10th Cir. 1990); Bean v. City of Buffalo, 822 F. Supp. 1016, 1019 (W.D.N.Y. 1993).
Therefore, to the extent that defendant Richards has moved for a stay of the proceedings in this Court, that motion is denied.
IT IS SO ORDERED.