from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:10-CV-01294-D)
on the briefs:[*]
E. Abowitz, Doerner Saunders Daniel & Anderson, LLP,
Oklahoma City, Oklahoma; Kayce L. Gisinger, Phillips Murrah
P.C., Oklahoma City, Oklahoma; and Richard N. Mann, Assistant
Attorney General, Oklahoma Attorney General's Office,
Litigation Section, Oklahoma City, Oklahoma, for
Barrett, Norman, Oklahoma, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
TYMKOVICH, Chief Judge.
his release from death row, Paris LaPriest Powell sued the
prosecutor responsible for his overturned conviction, Robert
Bradley Miller. Powell charged that Miller had suborned
perjury from a key witness at his trial, Derrick Smith; had
hidden from the defense evidence of Miller's agreement to
help Smith with his own criminal charges; and had failed to
disclose the efforts Miller made on Smith's behalf with
regard to those charges. Miller filed a motion to dismiss.
The district court granted the motion in part, but denied
qualified immunity on certain claims. Miller did not
appeal the ruling. Years later, Miller filed a motion to
reconsider the denial of qualified immunity. The district
court denied that motion as well. Miller now appeals from the
denial of his motion to reconsider.
we lack appellate jurisdiction over the district court's
order denying Miller's motion to reconsider, we dismiss
summary of the procedural posture of the case provides
context. In 2010, Powell filed this 42 U.S.C. § 1983
action against Miller and other defendants, alleging the
defendants violated his constitutional rights in connection
with Powell's 1997 murder conviction. In this case and a
companion case involving Powell's co-defendant, Yancey
Lyndell Douglas, Miller moved to dismiss the claims asserted
against him in his individual capacity based on various
defenses, including qualified immunity. The district court
denied Miller's qualified immunity defense as to
"Miller's post-trial actions in which he did not act
as an advocate for the State and was no longer employed as a
prosecutor, including his alleged wrongful efforts on behalf
of Derrick Smith." App. Vol. 2 at 413.
three years later, on October 26, 2015, Miller filed his
"Motion for Rehearing of Defendant Robert Bradley Miller
in His Individual Capacity and Brief in Support." App.
Vol. 5 at 1206. In the motion, Miller sought reconsideration
of the district court's prior order denying him qualified
immunity. The district court denied Miller's motion
because he had "presented no substantive basis for the
Court to change its opinion." Id. at 1227-28.
Miller now appeals the district court's order denying his
motion to reconsider.
well established that a district court's pretrial denial
of a qualified immunity defense, to the extent it turns on an
issue of law, is an appealable "final decision"
within the meaning of 28 U.S.C. § 1291. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). But Miller does not
appeal from the district court's order denying his
qualified immunity defense-that decision was issued in 2013
without appeal. Rather, Miller appeals from the district
court's order denying reconsideration of that ruling
almost three years later. Under these circumstances, we lack
jurisdiction to consider the district court's order
denying Miller's motion to reconsider.
does not apply here. In Mitchell, the Supreme Court
held that a decision denying qualified immunity, to the
extent it turns on an issue of law, "falls within
'that small class [of decisions] which finally determine
claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate
consideration be deferred until the whole case is
adjudicated.'" Id. at 524-25 (quoting
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949)). The Court reasoned that interlocutory orders
denying qualified immunity satisfy the three Cohen
criteria for immediate appeal because they (1) conclusively
determine the disputed question; (2) resolve an important
issue separate and collateral to the merits of the underlying
action; and (3) are effectively unreviewable from a final
judgment. Id. at 525-30.
order denying reconsideration of the denial of qualified
immunity does not, however, by itself satisfy the elements of
the collateral order doctrine. As the Second Circuit
explained in Lora v. O'Heaney, 602 F.3d 106 (2d
Unlike the substantive ruling on qualified immunity, the
determination by the district court whether to reconsider
that ruling does not raise important issues of the type
allowing interlocutory appeal. The legal question before us
on appeal from an order denying reconsideration is whether
the district court abused its discretion when denying
reconsideration. . . . Denial of reconsideration ...