Robert Boggs v. John K. Hoover; John C. Bradley; Charles R. French; Jo’ey Stewart

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BOGGS,
Plaintiff - Appellee,
v.
JOHN K. HOOVER; JOHN C.
BRADLEY; CHARLES R. FRENCH;
JO’EY STEWART,
Defendants,
and
AGNES SOWLE; KATHRYN A.
SHORT,
Defendants - Appellants.
No. 09-35803
D.C. No. 3:09-cv-00116-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted November 4, 2010
Portland, Oregon
FILED
NOV 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable James P. Jones, United States District Judge for the**
Western District of Virginia, sitting by designation.
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Before: W. FLETCHER and FISHER, Circuit Judges, and JONES,
District Judge. **
Defendants Sowle and Short appeal from the district court’s without-
prejudice dismissal of plaintiff Robert Boggs’ complaint for failure to state a claim.
Defendants allege that the complaint should have been dismissed with prejudice
because defendants are protected by qualified immunity and thus amendment
would be futile. We conclude that we lack appellate jurisdiction over this
interlocutory appeal.
A district court’s order dismissing a complaint with leave to amend is not an
appealable final order. See Santoro v. CTC Foreclosures Servs. Corp., 193 F.3d
1106, 1107 (9th Cir. 1999); Firchau v. Diamond Nat’l Corp., 345 F.2d 269, 270-71
(9th Cir. 1965). Accordingly, for this Court to have jurisdiction to review the
district court’s order, the order must qualify as a collateral order under Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Denials of qualified immunity
often qualify as appealable collateral orders under Mitchell v. Forsyth, 472 U.S.
511 (1985). Forsyth, however, was based on the need to protect government
defendants’ entitlement to qualified immunity by not subjecting them to “the costs

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of trial or to the burdens of broad-reaching discovery.” Id. at 526 (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 817-18 (1982)).
The unavailability of an interlocutory appeal at this stage of the proceedings
does not risk subjecting defendants to either trial or discovery. Defendants can
wait to see if plaintiff files an amended complaint, and, if he does, can file another
motion to dismiss. If plaintiff fails to correct the problem the district court
identified with the first complaint, defendants will prevail without needing to
appeal to this court. If plaintiff corrects the problem and the district court denies
the motion to dismiss, then defendants can appeal that decision. Cf. Behrens v.
Pelletier, 516 U.S. 299, 308 (1996). Dismissing this case for lack of appellate
jurisdiction thus balances the entitlement “not to stand trial or face the other
burdens of litigation,” Forsyth, 472 U.S. at 526, with the desire to avoid “waste[d]
judicial resources by requiring repetitive appellate review,” Van Cauwenberghe v.
Biard, 486 U.S. 517, 528 (1988), or appellate review that may prove entirely
unnecessary.
Defendants expressed concern that if they failed to appeal the district court’s
order they would be prohibited from defending against an amended complaint on
the basis of qualified immunity, or would waive their right to appeal the district
court’s qualified immunity determination. We see nothing that would prevent the

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district court from either reversing its earlier decision, or reaching a different
conclusion concerning qualified immunity based on differing factual allegations in
an amended complaint. Furthermore, there is no doctrine that requires a defendant
to take advantage of an available interlocutory appeal, and thus defendants need
not have feared that their right to appeal the district court’s qualified immunity
determination would have been waived, even had an appeal been available to them
at this point in the litigation.
DISMISSED.

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