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Powell v. Miller

United States Court of Appeals, Tenth Circuit

March 7, 2017

PARIS LaPRIEST POWELL, Plaintiff-Appellee,
v.
ROBERT BRADLEY MILLER, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:10-CV-01294-D)

         Submitted on the briefs:[*]

          Murray 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 Defendant-Appellant.

          Mark Barrett, Norman, Oklahoma, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.

          TYMKOVICH, Chief Judge.

         After 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.

         Because we lack appellate jurisdiction over the district court's order denying Miller's motion to reconsider, we dismiss Miller's appeal.

         A 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.

         Nearly 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.

         It is 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.[1]

         Mitchell 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.

         An 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 Cir. 2010):[2]

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 ...

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