Cobb v. Pozzi

20 F. App'x 62

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the appeal be and it hereby is DISMISSED, and that the case be and hereby is REMANDED to the district court.

Defendants Rocco A. Pozzi (Commissioner of Correction for the County of Westchester) and Joseph Miranda (Assistant Warden and Chief of Operations of the Westchester County Department of Corrections) appeal an order from the United States District Court for the Southern District (Brieant, J.) denying them summary judgment in a § 1983 action. The plaintiffs-appellees, correctional officers Dwayne Cobb and Jeffrey Rouse, alleged that Commissioner Pozzi and Chief Miranda instituted disciplinary proceedings against the plaintiffs as punishment for their union membership. The defendants answered, inter alia, that they were protected from this suit by qualified immunity. The district court found that the applicability of qualified immunity could not be determined without resolving various factual disputes and, hence, declined to grant summary judgment in favor of defendants.

We conclude that we lack jurisdiction to review the denial of qualified immunity. Such consideration would require resolving whether the defendants were motivated by unconstitutional animus, a disputed issue of fact. See Berhrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Locurto v. Safir, 264 F.3d 154, 167-168 (2d Cir.2001).

Having reviewed all of the defendants’ other claims and finding them to be without merit, we DISMISS the defendants’ appeal for lack of jurisdiction. The case is REMANDED to the district court for further proceedings consistent with this opinion.