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Lawson v. Abrams

decided: December 20, 1988.

BARTHOLOMEW J. LAWSON AND NANCY L. LESTER, PLAINTIFFS-APPELLEES,
v.
ROBERT ABRAMS, INDIVIDUALLY AND AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, EDWARD KURIANSKY, INDIVIDUALLY AND AS DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW YORK, STEPHEN J. CALVACCA, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, JAMES SCARINGE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, JOSEPH LOMBARDO, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, BARRY FRIEDMAN, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, MICHAEL BERLOWITZ, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, DAVID AXELROD, INDIVIDUALLY AND AS COMMISSIONER OF HEALTH OF THE STATE OF NEW YORK, RAYMOND SWEENEY, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPARTMENT OF HEALTH, CHARLES MURPHY, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, MICHAEL BLINSTRAUB, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, NICKOLAS MONGIARDO, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, ESTELLE WALL, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, WILLIAM GORMLEY, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, ROBERT CRANE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, JEROME JASINSKI, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, DAVID CHASE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, VICTORIA VENTRESCA, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK DEPARTMENT OF HEALTH, AND JANE DOE'S 1-18, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, EDWARD KAYE, INDIVIDUALLY AND AS AN OFFICER AND EMPLOYEE OF DISTRICT 1199, JEFFREY SACHS, INDIVIDUALLY AS SPECIAL ASSISTANT FOR HEALTH AND SPECIAL SERVICES, LEON DAVIS, INDIVIDUALLY AND AS PRESIDENT OF DISTRICT 1199, DORIS TURNER, INDIVIDUALLY AND AS AN OFFICER OF DISTRICT 1199, JUDITH BEREK, INDIVIDUALLY AND AS AN EMPLOYEE OF DISTRICT 1199, ASSEMBLYMAN FRANK BARBARO, ANTHONY EHLINGER, AARON ELBOGEN, ISRAEL FOGEL, WAYNE BARRETT, I. PHILIP SIPSER, RICHARD DORN, PHILIP WITKOWER, EUGENE NACHAMKIN, DIANE SAVAGE, (ALSO KNOWN AS DIANE IANDOLI, ALSO KNOWN AS DIANE BIANCULI), DAVID POLLOCK, AND JOHN AND JANE DOE'S 14-40, DEFENDANTS, ROBERT ABRAMS, INDIVIDUALLY AND AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, EDWARD KURIANSKY, INDIVIDUALLY AND AS DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW YORK, STEPHEN J. CALVACCA, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, JAMES SCARINGE, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, JOSEPH LOMBARDO, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, BARRY FRIEDMAN, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, MICHAEL BERLOWITZ, INDIVIDUALLY AND AS AN EMPLOYEE OF THE STATE OF NEW YORK, DEPUTY ATTORNEY GENERAL FOR MEDICAID FRAUD CONTROL, DEFENDANTS-APPELLANTS



Appeal from an order of the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, granting plaintiffs' motion to file an amended complaint notwithstanding appellants' assertion of absolute immunity. Appeal dismissed.

Kaufman, Newman, and Kearse, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Defendants Robert Abrams, Attorney General of the State of New York, and Edward Kuriansky, Stephen J. Calvacca, James Scaringe, Joseph Lombardo, Barry Friedman, and Michael Berlowitz, who are members of his staff (collectively "the state prosecutors"), appeal from so much of an order entered in the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, as granted plaintiffs Bartholomew J. Lawson and Nancy L. Lester leave to file an amended complaint under 42 U.S.C. § 1983 (1982) and state law, alleging principally that various actions by the state prosecutors improperly deprived them of their positions as operators of a nursing home. The district court allowed the filing of the amended complaint over appellants' objection that they were entitled to absolute immunity from suit on plaintiffs' claims, ruling that that defense was not clearly available with respect to all of the claims asserted against appellants. On appeal, the state prosecutors contend that the action against them should have been dismissed on grounds of absolute immunity. For the reasons below, we conclude that the appeal is premature, and we dismiss for lack of appellate jurisdiction.

BACKGROUND

From 1980 to 1982, Lawson and Lester operated the Hyam Solomon Home for the Aged (the "nursing home") under a contractual temporary appointment of receivership. In 1982, Lawson was indicted on charges of fraud and conspiracy to commit arson, and plaintiffs were ousted from their receivership positions. Lawson was eventually acquitted on all the charges against him.

The present suit was commenced in 1984 and alleged that the state prosecutors and others had conspired to force plaintiffs' removal from their receivership positions by means of, inter alia, the institution of the criminal investigation and prosecution. The original complaint was dismissed as against appellants on the ground that the complaint alleged essentially a claim of malicious prosecution, in defense of which appellants were entitled to absolute immunity.

Plaintiffs moved to amend their complaint in various respects; appellants opposed, again asserting absolute immunity. The court treated plaintiffs' motion as, in part, a motion for reconsideration of the dismissal of the original complaint, and it treated defendants' opposition as a motion to dismiss the proposed amended complaint under Fed. R. Civ. P. 12. To the extent pertinent here, the district court granted plaintiffs' motion to amend and denied appellants' motion to dismiss, in a Memorandum and Order dated May 5, 1988 ("Decision").

The amended complaint includes the following allegations. When plaintiffs took over operation of the nursing home, certain of its employees were members of District 1199 of the National Union of Hospital and Health Care Workers ("union"). Shortly thereafter, plaintiffs dismissed several of these employees, antagonizing the union. In January 1981, the union, in an effort to oust plaintiffs from their receivership, met with certain of the state prosecutors to request a criminal investigation and prosecution of Lawson on the basis of grounds "not yet existing, or to be fabricated in the future." The amended complaint alleges that the state prosecutors agreed that, notwithstanding the lack of evidence of violations of law by plaintiffs, an intensive investigation would be conducted, following which Lawson could be prosecuted; in exchange, the union agreed to endorse Abrams in his bid for reelection as Attorney General, and agreed to and did make a substantial monetary contribution to his election campaign. Thereafter, the state prosecutors allegedly "attempted to create false evidence during the investigation[,] engaged in illegal tape recordings[,] disseminated false information about plaintiffs to the media and others[,] and . . . disclosed Grand Jury proceedings to a newspaper reporter . . . ." Decision at 6.

The district court, though stating that appellants plainly had an absolute immunity defense to some of plaintiffs' claims, e.g., the decision to institute a prosecution against Lawson and other actions closely related to that decision, noted that prosecutors may assert only qualified immunity, not absolute immunity, for their administrative or investigative tasks not intimately associated with the judicial process. Concluding that it did not " ' "appear[] beyond doubt" ' " that plaintiffs would be unable to prove any acts by appellants other than those protected by absolute prosecutorial immunity, id. at 3 (quoting Ad-Hoc Committee v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957))), the court allowed the filing of the amended complaint against appellants and denied their Rule 12 motion to dismiss. The court noted that its ruling addressed only the defense of absolute immunity, and it invited defendants to file, after a limited period for discovery, motions for summary judgment if appropriate.

The state prosecutors have appealed, pursuing their defense of absolute immunity. We do not reach the merits of that defense because we conclude, for the reasons below, that the order of the district court is not appealable.

Discussion

Under § 1291 of 28 U.S.C., courts of appeals have jurisdiction to review "final decisions" of the district courts. 28 U.S.C. § 1291 (1982). An order that grants leave to amend the complaint is plainly not a final decision because it allows the litigation to continue. See La Capria v. Compagnie Maritime Belge, 373 F.2d 579, 580-81 (2d Cir. 1967); 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3914, at 538 (1976). For the same reason, the denial of a motion to dismiss is normally not considered a final decision within the meaning of this section. See, e.g., Catlin v. United States, 324 U.S. 229, 236, 89 L. Ed. 911, 65 S. Ct. 631 (1945); Chelsea Neighborhood Ass'ns v. United States Postal Service, 516 F.2d 378, 390 (2d Cir. 1975).

The collateral order doctrine, or Cohen doctrine, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949) ("Cohen"), establishes a narrow exception to § 1291's requirement that the decision appealed be the one that ends the litigation. This exception permits appeal of an interlocutory decision that conclusively determines an important issue that is collateral, i.e., entirely separate from the merits of the action, where that decision would be effectively unreviewable on appeal from the final judgment in the action. Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430-31, 86 L. Ed. 2d 340, 105 S. Ct. 2757 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978). In addition, such an appeal must present a question that is substantial, i.e., not ...


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