17-2930-cv
Carnelli v. Karani


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of July, two thousand eighteen.

PRESENT: DENNIS JACOBS,
           CHRISTOPHER F. DRONEY,
                 Circuit Judges,
           STEFAN R. UNDERHILL,
                 District Judge.*
______________________________________________
JACOB CARNELLI,
                        Plaintiff-Appellee,

                         v.                                                         No. 17-2930-cv

ADARBAAD KARANI,
                      Defendant-Appellant.**
______________________________________________

FOR PLAINTIFF-APPELLEE:                                    JOHN J.E. MARKHAM, II, Markham &
                                                           Read, Boston, MA.



* Judge Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by
designation.
** The Clerk of Court is respectfully directed to amend the official caption to conform with the above.

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FOR DEFENDANT-APPELLANT:                            EVAN OUELLETTE, Brody, Hardoon,
                                                    Perkins & Kesten, LLP, Boston, MA.

      Appeal from an opinion and order of the United States District Court for the District
of Vermont (Reiss, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the opinion and order of the district court be AFFIRMED.

       Defendant-appellant Adarbaad Karani appeals from an August 21, 2017, opinion
and order of the United States District Court for the District of Vermont (Reiss, J.) denying
his Federal Rule of Civil Procedure 56 motion seeking summary judgment on the ground
of qualified immunity.

       Prior to the action underlying this appeal, Plaintiff-Appellee Jacob Carnelli had sued
Karani for injuries sustained when Karani, an off-duty Boston policeman, bounced Carnelli
from a bar. Carnelli was deposed, and indicated that he had experienced homicidal
thoughts toward Karani. Karani learned of that testimony from his attorney, and
immediately wrote an internal memorandum to his supervisor at the Boston Police
Department (“BPD”). The memo indicated that Carnelli had made homicidal threats
toward Karani, and requested that the BPD provide police protection for Karani at his
deposition. Karani also requested that the BPD inform Carnelli’s employer, the Vermont
Department of Corrections (“Vermont DOC”), about the threats. The next day, before he
received a response from his supervisor, Karani himself faxed this same memo to the
Vermont DOC.

        Carnelli filed this suit in response, on the basis of diversity of citizenship, asserting
that Karani interfered with his job at the Vermont DOC and bringing causes of action under
Vermont law for tortious interference with contract, defamation, and intentional infliction
of emotional distress. In defense, Karani asserted qualified immunity under Vermont law.
The district court denied qualified immunity, and Karani appealed. On appeal, he argues
that he sent the memo at issue in good faith and was performing a discretionary duty within
the scope of his employment, and that he is therefore entitled to qualified immunity. We
assume the parties’ familiarity with the underlying facts, the procedural history, and the
issues presented for review.

       At the outset, Carnelli argues that we lack jurisdiction to hear Karani’s appeal since
the district court rejected Karani’s motion on the ground that there are disputed issues of
material fact. “Under the collateral order doctrine, a district court’s denial of a claim of


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qualified immunity, to the extent that it turns on an issue of law, is an appealable final
decision.” Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996) (internal quotation marks and
alteration omitted). A denial is also immediately appealable “where the defendant
contends that on stipulated facts, or on the facts that the plaintiff alleges are true . . . the
immunity defense is established as a matter of law because those facts show either that he
didn’t do it or that it was objectively reasonable for him to believe that his action did not
violate clearly established law.” Id. at 90-91 (internal quotation marks omitted).
However, “determinations of evidentiary sufficiency at summary judgment are not
immediately appealable if what is at issue in the sufficiency determination is nothing more
than whether the evidence could support a finding that particular conduct occurred.” Id.
at 89 (internal quotation marks and alterations omitted).

        Therefore, we entertain Karani’s appeal only to the extent that he argues that as a
matter of law he should have been granted qualified immunity, and we accept as true the
facts alleged by Carnelli.

        “The doctrine of qualified immunity shields officials from civil liability so long as
their conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(internal quotation marks omitted). “Vermont law accords government officials qualified
immunity if three conditions are met. First, the official’s actions must be within the scope
of his employment. Second, the official’s actions must be discretionary, as opposed to
ministerial. Finally, the official’s actions must be in good faith.” Napolitano v. Flynn,
949 F.2d 617, 622 (2d Cir. 1991).

       Officials act within the scope of their employment if they act “during the course of
their employment and act[], or reasonably believ[e] they are acting, within the scope of
their authority.” Baptie v. Bruno, 195 Vt. 308, 314 (2013) (internal quotation marks
omitted).

       Karani argues that the record demonstrates as a matter of law that he was acting
within the scope of his employment and authority when he sent the memo. We disagree.

       First, Carnelli alleges that the Boston Police Department’s Bureau of Professional
Standards Division found that Karani’s decision to fax the memo to Carnelli’s employer
violated departmental rules and regulations, which suggests Karani exceeded his authority
in sending it.1

1
    To the extent that Karani raises a hearsay objection to Carnelli’s declaration supporting this allegation,

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       Second, the nature of the memo itself and the circumstances under which Karani
faxed it to Carnelli’s employer support the inference that Karani acted outside his authority
at that time. It is undisputed that Karani composed the memo on a Boston Police
Department form used for internal communications, that he addressed it to his supervisor
within the department and other department personnel, and that the stated purpose of the
memo was to seek police protection at his own deposition later that day. Karani also
requested in the memo that the Vermont DOC be notified of Carnelli’s deposition
testimony. All of this only shows that it may have been within Karani’s authority to send
the memo internally at that time. However, it does not show that he had authority to send
the memo externally. Nor did Karani wait for his supervisors to act on his request to
send his memo to the Vermont DOC. Instead, one day after writing the memo, he faxed
a copy of the same memo to the Vermont DOC without receiving permission to do so.

      Finally, Carnelli alleges, plausibly, that Karani did this to harass or spite him
because of Carnelli’s previous lawsuit against Karani.

        On these facts, we cannot find as a matter of law that Karani acted within the scope
of his authority or reasonably believed that he was doing so. Thus, Karani cannot satisfy
the “scope of employment” requirement for qualified immunity.2 Accordingly, the order
of the district court is hereby AFFIRMED.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




we lack jurisdiction to consider that objection on interlocutory appeal. See DiStiso v. Cook, 691 F.3d 226,
230 (2d Cir. 2012). In any event, Carnelli has shown that “admissible evidence will be available at trial”
to prove the allegation: the Bureau of Professional Standards report was not yet finished at the time Karani
filed his motion, but it may become the subject of a proffer at trial. Burlington Coat Factory Warehouse
Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985).
2
 For this reason, we need not consider whether Karani has failed to satisfy the other elements of this
defense.

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