     12-847
     Walker v. Suffolk County Police Dep’t

 1                                   UNITED STATES COURT OF APPEALS
 2                                       FOR THE SECOND CIRCUIT
 3
 4                                             SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 8   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
11   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17   28th day of January, two thousand thirteen.
18
19   Present:    RALPH K. WINTER,
20               ROSEMARY S. POOLER,
21               DENNY CHIN,
22                           Circuit Judges.
23   _____________________________________________________
24
25   THOMAS WALKER, IV,
26
27                                      Plaintiff-Appellee,
28
29                               -v-                                            12-847
30
31   SUFFOLK COUNTY POLICE DEPARTMENT, STEPHEN JACOBS,
32   RICHARD PALAZZOLO,
33
34                                      Defendants-Appellants.
35
36   UNITED STATES MARSHALS SERVICES, WATERBURY POLICE
37   DEPARTMENT, 7TH PRECINCT, 6TH PRECINCT, SUFFOLK
38   COUNTY POLICE DEPARTMENT MASTIC/SELDEN, NEW YORK,
39
40                           Defendants.
41   _____________________________________________________
42
43   Appearing for Appellants:          ARLENE S. ZWILLING, Assistant County Attorney, for Dennis
44                                      M. Cohen, Suffolk County Attorney, Hauppauge, NY.
45
46   Appearing for Appellee:            CHRISTOPHER D. BELELIEU (Stuart W. Gold, Jacob M.
47                                      Honigman, on the brief) Cravath, Swaine & Moore LLP, New
48                                      York, NY.
 1          Appeal from the United States District Court for the Eastern District of New York
 2   (Gleeson, J.).
 3
 4         ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the order of said District Court be and it hereby is AFFIRMED in part
 6   and DISMISSED in part.
 7
 8           Defendants-Appellants (“Defendants”) appeal from the district court’s February 3, 2012
 9   denial of summary judgment on qualified immunity grounds in a suit by Plaintiff-Appellee
10   (“Plaintiff”) asserting a claim under 42 U.S.C. § 1983 for an unconstitutional denial of medical
11   care. We assume the parties’ familiarity with the underlying facts, procedural history, and
12   specification of issues for review.
13
14            “Qualified immunity protects public officials from liability for civil damages when one
15   of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law,
16   or (b) it was objectively reasonable for the defendant to believe that his action did not violate
17   such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation
18   marks omitted). “Orders denying summary judgment are generally not immediately appealable
19   ‘final decisions’ under 28 U.S.C. § 1291.” Bolmer v. Oliveira, 594 F.3d 134, 140 (2d Cir. 2010).
20   “Pursuant to the collateral order doctrine, however, we have jurisdiction over interlocutory
21   appeals of orders denying claims of qualified immunity[.]” Id. “[T]o avoid running afoul of the
22   collateral order doctrine’s requirement that a reviewable order involve a claim of right separable
23   from, and collateral to, rights asserted in the action, we may review immunity denials only to the
24   narrow extent they turn on questions of law.” Id. (internal brackets and quotation marks
25   omitted). On appeal, we look to “stipulated facts, or on the facts that the plaintiff alleges are
26   true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.”
27   Salim v. Proulx, 93 F.3d 86, 90 (2d Cir. 1996).
28
29           Defendants make two arguments on appeal: First, they argue that Plaintiff did not have a
30   “serious medical condition” and that, therefore, they did not unconstitutionally deny Plaintiff
31   medical care. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (discussing requirements for
32   a plaintiff’s unconstitutional denial of medical care claim). Alternately, Defendants claim that
33   their actions were objectively reasonable, because Plaintiff was not in their custody and there is
34   not a clearly established right to medical care from non-custodial officials. The district court
35   found that there were disputed issues of fact relating to (1) whether Plaintiff had a “serious
36   medical need” and (2) whether Plaintiff was in Defendants’ custody. These factual issues are
37   material. See Bolmer, 594 F.3d at 140-41. As Defendants’ claim of qualified immunity turns
38   not on questions of law but on questions of fact, we lack jurisdiction to hear this appeal.
39   “[W]here the district court denied immunity on summary judgment because genuine issues of
40   material fact remained, we have jurisdiction to determine whether the issue is material, but not
41   whether it is genuine.” Bolmer, 594 F.3d at 140-41.




                                                       2
1            We have considered all of the remaining arguments of the Suffolk County Police
2   Department, Jacobs, and Palazzolo and find them without merit. Accordingly, the order of the
3   district court is AFFIRMED in part and DISMISSED in part for lack of appellate jurisdiction.
4
5                                                      FOR THE COURT:
6                                                      Catherine O’Hagan Wolfe, Clerk
7




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