                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 28 2013

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




                            FOR THE NINTH CIRCUIT



RANDY REAL,                                      No. 12-16459

              Plaintiff - Appellee,              D.C. No. 2:09-cv-03273-GEB-
                                                 KJN
  v.

JAMES WALKER, Warden; T.                         MEMORANDUM *
VENTIMIGLIA, Correctional Officer; J.
STEWART, Correctional Officer; R.
PARRILLA, Correctional Officer;
EVERETT W. FISHER, Correctional
Officer; SCOTT S. KISSER, Correctional
Officer; G. WILLIAMS, Correctional
Officer; R. RAMOS, Correctional Officer;
K. POOL, Correctional Officer; K. M.
POOL, Correctional Officer; N.
GRANNIS, Correctional Officer;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

              Defendants - Appellants.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Garland E. Burrell, Senior District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                        Argued and Submitted May 14, 2013
                             San Francisco, California

Before: McKEOWN and WATFORD, Circuit Judges, and MARBLEY, District
Judge.**

      Defendants appeal from the district court’s order dismissing plaintiff’s first

amended complaint for failure to state a claim. The district court granted plaintiff

leave to amend a subset of the claims and deferred ruling on defendants’ qualified

immunity defense until plaintiff filed his second amended complaint. Defendants

contend that we have jurisdiction to review the district court’s order because it

implicitly denied their qualified immunity defense.

      Under Miller v. Gammie, 335 F.3d 889, 894-95 (9th Cir. 2003) (en banc), we

lack jurisdiction to review an order that does not deny an immunity defense, but

merely defers ruling on it. In Miller, the district court deferred ruling on the

absolute immunity defense and permitted limited discovery to be conducted on that

defense. We nonetheless concluded that we lacked appellate jurisdiction because

the deferral order was “not conclusive” and did not “deny the claimed existence of

immunity.” Id. Given the more substantial burdens to which the defendants in

Miller were subjected, defendants here cannot credibly argue that the burden of



       **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

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having to respond to a second amended complaint justifies an exception to Miller’s

rule. See Moss v. United States Secret Serv., 572 F.3d 962, 973-74 (9th Cir. 2009).

      Defendants contend that Miller is distinguishable because the absolute

immunity defense there could not be resolved without further factual development,

whereas the qualified immunity defense here can be resolved based on plaintiff’s

own version of the facts. Although it is true that the district court in Miller

deferred ruling because it believed further factual development was required, our

jurisdictional holding did not depend on the specific reasoning underlying the

decision to defer. Rather, we found jurisdiction lacking based on the broader

rationale that an order deferring an immunity ruling does not conclusively resolve

the defense and thus cannot be immediately appealed. See Miller, 335 F.3d at 894-

95.

      Defendants’ reliance on cases in which qualified immunity was implicitly or

effectively denied is misplaced. See, e.g., Chavez v. United States, 683 F.3d 1102,

1107-08 (9th Cir. 2012). The concern in those cases was that the effect of the

district court’s ruling (or refusal to rule) was to allow the action to proceed, with

open-ended discovery, to summary judgment or trial. No such concern is present

here. Defendants actually prevailed in obtaining dismissal of all of plaintiff’s




                                           3
claims, and the action was, at worst for defendants, on hold pending the filing of a

second amended complaint.

      DISMISSED.




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