                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 07 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANGELO DAHLIA,                                   No. 10-55283

              Plaintiff - Appellee,              D.C. No. 2:09-cv-08453-MMM-
                                                 JEM
  v.

TIM STEHR, individually,                         MEMORANDUM *

              Defendant - Appellant,

  and

CITY OF BURBANK, a municipal
corporartion; OMAR RODRIGUEZ,
individually and as a Lieutenant of the
Burbank Police Department; JOHN
MURPHY, individually and as a
Lieutenant of the Burbank Police
Department; EDGAR PENARANDA,
individually and as a Sergeant of the
Burbank Police Department; JOSE
DURAN, individually and as a Sergeant of
the Burbank Police Department; CHRIS
CANALES, individually and as a
Detective of the Burbank Police
Department,

              Defendants.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                             Submitted May 8, 2012 **
                               Pasadena, California

Before: WARDLAW, PAEZ, and RAWLINSON, Circuit Judges.

      Defendant Tim Stehr appeals from the district court’s denial of his motion

for summary judgment on the ground that it was premature.1 We review de novo

the denial of summary judgment where qualified immunity is at issue, KRL v.

Estate of Moore, 512 F.3d 1184, 1188-89 (9th Cir. 2008), and we reverse.

      1. We have jurisdiction under 28 U.S.C. § 1291 to review Stehr’s

interlocutory appeal because his motion asserted qualified immunity. Wilkins v.

City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003). Although the district court


          **
             The panel unanimously concludes this appeal is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1
          Stehr moves to supplement the excerpts of record on appeal with the
district court order and subsequent notice of appeal in Plaintiff Angelo Dahlia’s
related appeal (No. 10-55978), and requests that we take judicial notice of those
documents. We grant the request because those documents are judicial records,
Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), they relate to
proceedings that involve the same parties reflected in those documents, Egan v.
Teets, 251 F.2d 571, 577-79 (9th Cir. 1957), and those judicial developments
“affect our consideration of the various issues presented,” Bryant v. Carleson, 444
F.2d 353, 357 (9th Cir. 1971). However, we decline to supplement the excerpts of
record on appeal on the ground that it is unnecessary.
dismissed Stehr’s motion without expressly discussing the qualified immunity

question, it implicitly denied the qualified immunity claim. Giebel v. Sylvester,

244 F.3d 1182, 1186 n.6 (9th Cir. 2001). Even where, as here, there are issues of

fact in dispute, “we can determine whether the denial of qualified immunity was

appropriate by assuming that the version of the material facts asserted by [Dahlia]

is correct.” Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001).

      That the district court denied Stehr’s motion without prejudice does not

defeat jurisdiction. Under Behrens v. Pelletier, 516 U.S. 299 (1996), a denial of

summary judgment without prejudice is sufficiently final to support jurisdiction

over an interlocutory appeal, id. at 307-08, because the purpose of qualified

immunity is “not merely to avoid standing trial, but also to avoid the burdens of

such pretrial matters as discovery,” id. at 308 (citing Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)) (emphasis in original) (internal quotation marks omitted). See

also Moss v. U.S. Secret Service, 572 F.3d 962, 974 (9th Cir. 2009) (declining to

exercise jurisdiction over an interlocutory appeal only because, unlike here, there

was no imminent discovery due to a stay).

      2. Stehr is entitled to qualified immunity because, as Dahlia concedes, we

have not previously decided the question of whether being placed on

administrative leave with pay constitutes an adverse employment action. See


                                          3
Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803 n.7 (9th Cir. 2009)

(declining to reach the question of whether administrative leave constituted an

adverse employment action). Dahlia’s purported right protecting him from

placement on administrative leave was thus not “clearly established” at the time of

the challenged conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting

Harlow v. Fitzgerland, 457 U.S. 800, 818 (1982)). In light of our silence, and the

unanimous weight of authority from other jurisdictions holding that administrative

leave does not constitute an adverse employment action, the contours of Dahlia’s

purported right were not sufficiently clear that an official in Stehr’s position would

have “understood that what he is doing violates that right.” Id. at 2083.

      REVERSED.




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