    09-2551-cv
    Abrahams v. Inc. Village of Hempstead



                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY
ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY
CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 4th day of August, two thousand ten.

    PRESENT:
                GUIDO CALABRESI,
                ROSEMARY S. POOLER,
                DENNY CHIN,
                            Circuit Judges.
    __________________________________________

    Michael Abrahams,

                      Plaintiff-Appellee,

                      v.                                                     09-2551-cv

    Incorporated Village of Hempstead, et al.,

                Defendants-Appellants.
    __________________________________________

    FOR APPELLANTS:                         Howard M. Miller, Bond, Schoeneck & King, PLLC, Garden City,
                                            NY.

    FOR APPELLEE:                           Michael Abrahams, pro se, Hempstead, NY.


           Appeal from an order of the United States District Court for the Eastern District of New
    York (Feuerstein, J.)
    UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED.

        Appellants, the Incorporated Village of Hempstead and various employees thereof,
appeal the district court’s June 2009 order denying their motion to dismiss Michael Abrahams’s
complaint on the basis of qualified immunity. Although we assume the parties’ familiarity with
the case, we pause to note the unusual posture in which this case arises. Approximately one year
after defendants’ motion to dismiss was denied in part, and while this appeal was pending, Judge
Feuerstein dismissed the complaint for failure to prosecute. The dismissal of the complaint
while the appeal was pending was error. A notice of appeal divests a district court of
jurisdiction. See Doe v. Gonzales, 449 F.3d 415, 420 (2d Cir. 2006); Fort Knox Music Inc. v.
Baptiste, 257 F.3d 108, 111 (2d Cir. 2001). Accordingly, defendants’ appeal is not moot, and we
proceed to discuss its merits.

         Because 28 U.S.C. § 1291 gives appellate courts jurisdiction to hear appeals only from
“final decisions,” interlocutory appeals are the exception, not the norm. Under the collateral
order doctrine, an order denying a party’s assertion of qualified immunity is immediately
appealable insofar as the denial of immunity turns on a question of law. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1946 (2009) (“Provided it turns on an issue of law, ... a district court’s order
rejecting qualified immunity at the motion-to-dismiss stage of a proceeding . . .. . . is a ‘final
decision’ within the meaning of [28 U.S.C.] § 1291.”) (internal quotation marks omitted). The
defendants may not rely on the collateral order doctrine, however, if they dispute the facts as
alleged by the plaintiff on appeal (or, in the summary judgment context, as determined by the
district court to be sufficiently well-supported to create issues for trial). See Salim v. Proulx, 93
F.3d 86, 89 (2d Cir. 1996); see generally Johnson v. Jones, 515 U.S. 304, 319-20 (1995);
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).

         Here, the district court denied defendants’ motion because it determined that it was
premature at that stage of the litigation to decide whether it was objectively reasonable for
defendants to believe that their alleged actions did not violate plaintiff’s rights. The district
court concluded that defendants’ claim of immunity was predicated on the assertion that, as a
factual matter, plaintiff could not establish the necessary elements to prevail on his stigma-plus
due process claim. Far from showing that this conclusion was error, defendants continue to
argue the facts on appeal, disputing the nature and circumstances of the stigmatizing statements
that plaintiff attributes to them. Accordingly, we lack jurisdiction to consider defendants’
interlocutory appeal. See Britt v. Garcia, 457 F.3d 264, 270 (2d Cir. 2006) (“[A] federal court of
appeals lacks jurisdiction to decide an interlocutory appeal from a district court’s denial of a
claim of qualified immunity to the extent that the denial involves only a question of evidence
sufficiency.” (quoting Johnson, 515 U.S. at 313) (internal quotation marks omitted)); see also
Viilo v. Eyre, 547 F.3d 707, 712 (7th Cir. 2008) (“In denying rather than embracing the facts the
district court held to be sufficiently well-supported to create jury issues, the defendants have
pleaded themselves out of court.”).


                                                  2
    For the foregoing reasons, we DISMISS this appeal for lack of jurisdiction and
REMAND for further proceedings consistent with this decision.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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