    19-598
    Szabo v. City of New York


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 31st day of March, two thousand twenty.

    PRESENT:
                RICHARD C. WESLEY,
                SUSAN L. CARNEY,
                STEVEN J. MENASHI,
                      Circuit Judges.
    _____________________________________

    Jessica Szabo, AKA Jessica C. Graham,

                                Plaintiff-Appellee,

                       v.                                                 No. 19-598

    P.O. Dia Cascone, Shield #18972 at the
    120th Pct.,

                                Defendant-Appellant,

    City of New York, State of New York, New
    York City Department of Correction,
    Janele Hyer-Spencer, Sgt. Linda Sills,
    Court Officer Mary Valley, Sgt. James
    Wilson, Shield #4677 at the 8th Pct., P.O
    Vincent Palmer, Shield #13556, P.O
    William Kulik, Shield #23965, P.O. Cara
    Gambardella, Shield #01915 at the 120th
    Pct., Court Officer Stephanie
    Parascandolo, P.O. Elisa Ranieri, Shield
#10822 at the 120th Pct., P.O. Tyeaste
DeGroat, NYCPD Detective Bureau,
Police Officer Tarell Winfield, Shield
#20038,

                  Defendants.
_____________________________________


FOR PLAINTIFF-APPELLEE:                               Jessica Szabo, pro se, Staten Island, NY.

FOR DEFENDANT-APPELLANT:                              Elina Druker, Richard Dearing, for Zachary
                                                      W. Carter, Corporation Counsel of the City
                                                      of New York, New York, NY.


       Appeal from an order of the United States District Court for the Eastern District of New

York (Chen, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED for lack of jurisdiction.

       New York City Police Department (“NYPD”) Officer Dia Cascone appeals from the

district court’s denial of her motion for summary judgment based on her qualified immunity

defense. Cascone is a defendant in a suit brought by Jessica Szabo, proceeding pro se on a claim

alleged under 42 U.S.C. § 1983 for use of excessive force. (Cascone is one of several defendants

in the ongoing district court action, but the only defendant-appellant.) In her complaint, Szabo

contends that Cascone used excessive force by dragging her 30 feet to her cell while she was

handcuffed and not resisting, and then shoving her into her cell, causing Szabo to strike her head.

Cascone responds that Szabo’s state-court guilty plea to assault and conviction under New York

Penal Law § 120.05(3), allegedly arising from the same interaction, precludes Szabo from

asserting in the district court action that Szabo was not resisting when the incident occurred.

Cascone argues that the preclusive effect of the conviction requires a finding that Cascone’s actions

were objectively reasonable as a matter of clearly established law.
       The district court rejected Cascone’s preclusion argument, ruling that any preclusive effect

properly accorded to Szabo’s guilty plea did not resolve all disputes of material fact. The threshold

question on appeal is whether this Court has jurisdiction to consider this matter. The answer to that

question, in turn, hinges on whether Cascone’s arguments concerning the preclusive effect of

Szabo’s guilty plea present solely an issue of law. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal, to which we refer

only as need to explain our decision to dismiss.

Jurisdiction: Legal Principles

       To exercise jurisdiction over an interlocutory appeal, the resolution of the issues presented

(here, the preclusive effect of a state criminal conviction) must turn on a pure question of law. An

interlocutory order that denies qualified immunity may be immediately appealed under the

collateral order doctrine only where the decision turns solely on a question of law. See Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985) (“[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 notwithstanding the absence of a final judgment.”). A district court’s “mere

assertion that disputed factual issues existed” is not “enough to preclude an immediate appeal,”

however. Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996). Even where the district court has made

such an assertion, an immediate appeal may be had where “the defendant can support an immunity

defense on stipulated facts, facts accepted for purposes of the appeal, or the plaintiff’s version of

the facts that the district judge deemed available for jury resolution.” Id. at 90; accord Lynch v.

Ackley, 811 F.3d 569, 576 (2d Cir. 2016).

       This Court has previously reviewed a collateral estoppel argument on an interlocutory

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appeal from the denial of qualified immunity where “there [were] no questions of fact to be

determined with respect to the collateral estoppel argument.” Golino v. City of New Haven, 950

F.2d 864, 868 (2d Cir. 1991). A federal court must apply the collateral estoppel rules of the state

that rendered the prior judgment, here New York. See Migra v. Warren City Sch. Dist. Bd. of Educ.,

465 U.S. 75, 81 (1984). Under New York law, a “criminal conviction may be given collateral

estoppel effect in a subsequent civil litigation if there is an identity of issues and a full and fair

opportunity to litigate in the first action.” Hooks v. Middlebrooks, 99 A.D.2d 663, 663 (4th Dep’t

1984); see also LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002) (outlining collateral estoppel

requirements under New York law). Collateral estoppel applies only “‘if the issue in the second

action [was] . . . necessarily decided and material in the first action[.]’” Sullivan v. Gagnier, 225

F.3d 161, 166 (2d Cir. 2000) (per curiam) (quoting Parker v. Blauvelt Volunteer Fire Co., 93

N.Y.2d 343, 349 (1999)). Application of the collateral estoppel doctrine “requires a detailed

examination of the record in the prior state criminal case . . . [and] [t]he burden of proof with

respect to whether an issue is identical to one that was raised and necessarily decided in the prior

action rests squarely on the party moving for preclusion.” Id.

Jurisdiction: Application

       Our jurisdiction over this appeal thus turns on whether Cascone’s arguments regarding the

preclusive effect of Szabo’s guilty plea to the state assault charge present a pure question of law.

The question before us, according to Cascone, is whether it was “clearly established whether an

officer could forcefully push a pre-trial detainee into her cell, where the detainee assaulted the

officer to prevent being placed in the cell.” Appellant’s Reply Br. 5 (emphasis added). If the

preclusive effect of Szabo’s plea made it indisputable that Szabo was resisting when she was

                                                  4
pushed into her cell (regardless of Szabo’s contrary testimony), this appeal would present a pure

legal question, and we would have jurisdiction. If the record reveals unresolved factual issues

concerning to what charges Szabo pleaded guilty and what arguments are now foreclosed to her,

however, then we would not have jurisdiction.

        Cascone asserts that “Szabo admitted—and cannot now contest—that she caused Cascone

a physical injury with intent to interfere with [Cascone’s] performance of her lawful duties.”

Appellant’s Br. 16. Cascone contends that Szabo’s assault on her could only have occurred before

Szabo was placed in her cell, because none of the accounts of the incident described any act

occurring after her placement in the cell that would qualify as an assault under New York law.

Relying on the preclusive effect of the conviction to establish that Szabo was resisting when

Cascone shoved her, Cascone asserts both that her actions in shoving Szabo were objectively

reasonable and that no clear precedent established at the time that shoving a resisting detainee into

a cell violated a clearly established right.

        Unlike in Golino, however, the record on appeal of the New York criminal case does not

resolve the material questions of fact in the current action. In Golino, we held that no questions of

fact remained to be determined with respect to the collateral estoppel argument asserted there

because the parties did not dispute which issues were before the state court or which issues were

necessarily decided by that court. 950 F.2d at 868. Here, by contrast, genuine and material factual

questions remain as to what issues were before the state court and were necessarily decided by the

state court plea.

        Cascone bore the burden of using the New York criminal case record evidence to resolve

factual questions as she sought summary judgment in her favor. Id. She has not carried that burden.

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The defendants produced neither a plea agreement nor the plea allocution for consideration by the

district court in connection with the motion. The only available document from the New York

criminal proceedings was the criminal complaint, and that document described the assault as

having occurred while Cascone sought to remove Szabo from her cell to transport her to court—a

version of events contradicting both sides’ narratives. Without more, it is impossible to perceive

what issues were “necessarily decided” in the criminal proceedings, making it “difficult to perceive

how such an inquiry could take place in this case.” Sullivan, 225 F.3d at 166.

       In such circumstances, “questions of fact [remain] to be determined with respect to the

collateral estoppel argument” on which this appeal hinges. Golino, 950 F.2d at 868. Cascone’s

appeal attempts to proceed as if those questions did not remain. For these reasons, the collateral

order doctrine does not apply, and we cannot exercise jurisdiction over this interlocutory appeal.

       Accordingly, we DISMISS the appeal for lack of jurisdiction.


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




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