Juan L. Perez v. Richard Brioso

Case: 17-13430 Date Filed: 04/26/2018 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-13430 Non-Argument Calendar ________________________ D.C. Docket No. 1:16-cv-24267-CMA

JUAN L. PEREZ, MARIA A. POSADA, Plaintiffs - Appellees, versus

RICHARD BRIOSO, ARMANDO GONZALEZ, Defendants - Appellants.

________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 26, 2018) Before WILSON, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM: Case: 17-13430 Date Filed: 04/26/2018 Page: 2 of 3

Defendants Richard Brioso and Armando Gonzalez appeal the denial of their motion for summary judgment based on qualified immunity. We dismiss their appeal for lack of jurisdiction.

“[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.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985). But we lack interlocutory appellate jurisdiction where the denial of summary judgment is based solely on evidentiary sufficiency, Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996), or where the decision is merely “tentative, informal or incomplete.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S. Ct. 1203, 1208 (1995).

After hearing oral argument, the district court denied summary judgment without prejudice “not because . . . that’s the final decision, but because the briefing is inadequate.” The court expressed its desire to “make it clear on th[e] record” that “the briefing is inadequate to assist me in determining whether or not these officers were acting within their discretionary authority such that we engage in the qualified immunity analysis.” The district court then briefly speculated that, as things stood, it did not think that Brioso and Gonzales met their burden of showing that their conduct “doesn’t shock the conscience.”

Case: 17-13430 Date Filed: 04/26/2018 Page: 3 of 3

In light of the fact that the district court refused to conduct a qualified immunity analysis because of deficiencies in the briefing and the evidence, dismissed the summary judgment motion without prejudice, emphasized that its order was “not a final decision,” and encouraged the parties “to seek leave to file an amended and corrected motion for summary judgment,” we think its order was too tentative and incomplete to constitute a final decision under Mitchell. Under these circumstances, the order did not “finally and conclusively determine[] the defendant[s’] claim of right not to stand trial on the plaintiff[s’] allegations,” because “further steps [] can be taken in the District Court to avoid the trial the defendant[s] maintain[] is barred.”1 Mitchell, 472 U.S. at 527, 105 S. Ct. at 2816 (emphasis omitted). Accordingly, we lack jurisdiction to hear the appeal of the qualified immunity issue at this time.

DISMISSED.