            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                                                         [DO NOT PUBLISH]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.”




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                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.




1
  Brioso and Gonzalez argue that having to amend their motion to dismiss to cure the
deficiencies pointed out by the district court would contravene the purpose of qualified
immunity. But we have previously stated that “responding to [a] second amended complaint is
not a burden of litigation from which the immunity doctrines protect” defendants, Howe v. City
of Enter., 861 F.3d 1300, 1303 n.1 (11th Cir. 2017) (per curiam), and neither is amending a
motion for summary judgment so that the district court can properly and finally rule on whether
the defendants are entitled to qualified immunity.
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