Robert Boggs v. Agnes Sowle

MEMORANDUM

Defendants Sowle and Short appeal from the district court’s without-prejudice dismissal of plaintiff Robert Boggs’ complaint for failure to state a claim. Defendants allege that the complaint should have been dismissed with prejudice because defendants are protected by qualified immunity and thus amendment would be futile. We conclude that we lack appellate jurisdiction over this interlocutory appeal.

A district court’s order dismissing a complaint with leave to amend is not an appealable final order. See Santoro v. CTC Foreclosures Servs. Corp., 193 F.3d 1106, 1107 (9th Cir.1999); Firchau v. Diamond Nat’l Corp., 345 F.2d 269 , 270-71 (9th Cir.1965). Accordingly, for this Court to have jurisdiction to review the district court’s order, the order must qualify as a collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). Denials of qualified immunity often qualify as appeal-able collateral orders under Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). Forsyth , however, was based on the need to protect government defendants’ entitlement to qualified immunity by not subjecting them to…