    17-2313
    Chris H. v. State 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 14th day of March, two thousand eighteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                DENNY CHIN,
                      Circuit Judge,
                ALISON J. NATHAN,*
                      District Judge.
    _____________________________________

    CHRIS H.,
                                    Plaintiff-Appellant,
                       v.                                                      17-2313

    THE STATE OF NEW YORK, THE CITY OF
    NEW YORK, COMMISSIONER OF SOCIAL
    SERVICES, DEPARTMENT OF SOCIAL
    SERVICES, TANDRA L. DAWSON, severally,
    jointly in her official and individual capacity as
    Judge of Supreme Court, PAUL RYNESKI, ESQ.,
    severally, jointly, in his official and individual
    capacity as Magistrate of New York Family Court,
    TIONNEI CLARKE, ESQ., severally, jointly, in her
    official and individual capacity as Magistrate of

    * Judge Alison J. Nathan, of the United States District Court for the Southern District of New
    York, sitting by designation.
                                                           1
New York Family Court, ORLANDIO RIOS,
severally, jointly, in his official and individual
capacity as New York City Police Officer, Shield
#05241,

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                        Chris Henry, pro se, New York, New York.

FOR DEFENDANTS-APPELLEES                        Eric T. Schneiderman, Attorney General of the
TANDRA L. DAWSON, PAUL RYNESKI,                 State of New York, Barbara D. Underwood,
TIONNEI CLARKE, and STATE OF NEW                Solicitor General, Steven C. Wu, Deputy Solicitor
YORK:                                           General, Mark S. Grube, Assistant Solicitor
                                                General, of Counsel, New York, New York.

FOR DEFENDANTS-APPELLEES        Zachary W. Carter, Corporation Counsel of the
CITY OF NEW YORK, THE           City of New York, Susan P. Greenberg, Barbara
COMMISSIONER OF SOCIAL SERVICES Graves-Poller, of Counsel, New York, New York.
and OFFICER ORLANDO RIOS:


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Schofield, J.).

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

DECREED that the appeal is DISMISSED.

       Plaintiff-Appellant Chris Henry, proceeding pro se, appeals from the district court’s

dismissal of his claims. The district court thereafter permitted Henry to file a letter setting out

additional allegations. Henry filed such a letter and also appealed from the judgment, after which

the district court denied Henry leave to amend “without prejudice to refiling after the appeal is

decided.” S.D.N.Y. Dkt. No. 97 at 1. We assume the parties= familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.




                                                  2
       We are obligated to consider our jurisdiction, even when not raised by the parties. Swede

v. Rochester Carpenters Pension Fund, 467 F.3d 216, 219 (2d Cir. 2006). As relevant to this

matter, the decision below will be appealable once there has been a “final decision” pursuant to 28

U.S.C. § 1291. See Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 66 (2d Cir.

2011). “A final judgment or order is one that conclusively determines all pending claims of all

the parties to the litigation, leaving nothing for the court to do but execute its decision.” Petrello

v. White, 533 F.3d 110, 113 (2d Cir. 2008).

       We currently lack jurisdiction to hear the instant appeal because the district court provided

Henry with an opportunity to amend his pleadings. “A dismissal with leave to amend is a non-

final order and not appealable.” Slayton v. Am. Exp. Co., 460 F.3d 215, 224 (2d Cir. 2006).

Although “an appellant can render such a non-final order ‘final’ and appealable by disclaiming

any intent to amend,” id., that did not occur here, as Henry sought to avail himself of the

opportunity to amend prior to filing his notice of appeal.

       Nor did the entry of judgment render the district court’s decision final. “Appealability

turns on what has been ordered, not on how it has been described.” Spates v. Manson, 619 F.2d

204, 209 n.3 (2d Cir. 1980). Accordingly, the fact that judgment was entered by the district court

prior to the filing of Henry’s notice of appeal is not decisive. “When a judgment has been so set

forth and docketed, the question remains whether . . . ‘the district court intended the judgment to

represent the final decision in the case.’” Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir. 1986)

(quoting Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 n.6 (1978)). Here, the provision of an

opportunity to submit additional allegations reflects that the district court’s order was not intended

to be the final decision in the case. That conclusion is bolstered by the district court’s subsequent

                                                  3
order denying Henry leave to amend without prejudice to refiling after this appeal, which similarly

anticipated revisiting Henry’s pleadings. Because “the matter remains open, unfinished or

inconclusive, there may be no intrusion by appeal.” Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949).

       Accordingly, we DISMISS the appeal for lack of appellate jurisdiction.1

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




1
  We need not—indeed, we cannot—also remand because Henry’s notice of appeal “was
premature and did not divest the district court of jurisdiction.” Burger King Corp. v. Horn &
Hardart Co., 893 F.2d 525, 527 (2d Cir. 1990).

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