Randy Real v. JAMES WALKER, Warden

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NOT FOR PUBLICATION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
RANDY REAL,
Plaintiff - Appellee,
v.
JAMES WALKER, Warden; T.
VENTIMIGLIA, Correctional Officer; J.
STEWART, Correctional Officer; R.
PARRILLA, Correctional Officer;
EVERETT W. FISHER, Correctional
Officer; SCOTT S. KISSER, Correctional
Officer; G. WILLIAMS, Correctional
Officer; R. RAMOS, Correctional Officer;
K. POOL, Correctional Officer; K. M.
POOL, Correctional Officer; N.
GRANNIS, Correctional Officer;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Defendants - Appellants.
No. 12-16459
D.C. No. 2:09-cv-03273-GEB-
KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Senior District Judge, Presiding
FILED
MAY 28 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Algenon L. Marbley, United States District Judge for**
the Southern District of Ohio, sitting by designation.
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Argued and Submitted May 14, 2013
San Francisco, California
Before: McKEOWN and WATFORD, Circuit Judges, and MARBLEY, District
Judge.**
Defendants appeal from the district court’s order dismissing plaintiff’s first
amended complaint for failure to state a claim. The district court granted plaintiff
leave to amend a subset of the claims and deferred ruling on defendants’ qualified
immunity defense until plaintiff filed his second amended complaint. Defendants
contend that we have jurisdiction to review the district court’s order because it
implicitly denied their qualified immunity defense.
Under Miller v. Gammie, 335 F.3d 889, 894-95 (9th Cir. 2003) (en banc), we
lack jurisdiction to review an order that does not deny an immunity defense, but
merely defers ruling on it. In Miller, the district court deferred ruling on the
absolute immunity defense and permitted limited discovery to be conducted on that
defense. We nonetheless concluded that we lacked appellate jurisdiction because
the deferral order was “not conclusive” and did not “deny the claimed existence of
immunity.” Id. Given the more substantial burdens to which the defendants in
Miller were subjected, defendants here cannot credibly argue that the burden of

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having to respond to a second amended complaint justifies an exception to Miller’s
rule. See Moss v. United States Secret Serv., 572 F.3d 962, 973-74 (9th Cir. 2009).
Defendants contend that Miller is distinguishable because the absolute
immunity defense there could not be resolved without further factual development,
whereas the qualified immunity defense here can be resolved based on plaintiff’s
own version of the facts. Although it is true that the district court in Miller
deferred ruling because it believed further factual development was required, our
jurisdictional holding did not depend on the specific reasoning underlying the
decision to defer. Rather, we found jurisdiction lacking based on the broader
rationale that an order deferring an immunity ruling does not conclusively resolve
the defense and thus cannot be immediately appealed. See Miller, 335 F.3d at 894-
95.
Defendants’ reliance on cases in which qualified immunity was implicitly or
effectively denied is misplaced. See, e.g., Chavez v. United States, 683 F.3d 1102,
1107-08 (9th Cir. 2012). The concern in those cases was that the effect of the
district court’s ruling (or refusal to rule) was to allow the action to proceed, with
open-ended discovery, to summary judgment or trial. No such concern is present
here. Defendants actually prevailed in obtaining dismissal of all of plaintiff’s

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claims, and the action was, at worst for defendants, on hold pending the filing of a
second amended complaint.
DISMISSED.

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