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Cummings v. Dean, 913 F.3d 1227 (10th Cir. Jan. 24, 2019)

Mar 30, 2019

After the district court granted in part and denied in part the defendants’ motion to dismiss the due process claims asserted against them under 42 U.S.C. § 1983, holding one defendant was entitled to qualified immunity on all claims, while one defendant was not entitled to qualified immunity on the substantive due process claim, defendants and the plaintiff appealed.  The Tenth Circuit dismissed the plaintiffs’ cross-appeal for lack of jurisdiction after evaluating whether jurisdiction over the partial grant of the motion to dismiss was proper under the discretionary doctrine of pendant jurisdiction.  In doing so, the Tenth Circuit reaffirmed that exercise of pendant jurisdiction generally is disfavored in an appeal from the denial of qualified immunity.  It then held the plaintiffs had failed to establish their appeal fell within the two circumstances where pendant jurisdiction is proper:  “(1) when the otherwise nonappealable decision is inextricably intertwined with the appealable decision, or (2) where review of the nonappealable decision is necessary to ensure meaningful review of the appealable one.”