The Seventh Circuit Court of Appeals dismissed an appeal by defendant prison guards for lack of jurisdiction. The guards first moved to dismiss the complaint based on official immunity. That motion was denied. Despite being interlocutory in character, denial of an immunity claim is appealable. But instead of appealing, defendants took discovery and then moved for summary judgment, also based on official immunity.
Defendants did appeal the denial of their summary judgment motion. But that appeal was dismissed because “public officials cannot use a motion for summary judgment in order to reopen the time to take an interlocutory appeal from an order declining to dismiss the complaint.”
The court discussed the propriety of Garvin v. Wheeler, 304 F.3d 628 (7th Cir. 1986), disallowing appeal from a summary judgment motion based on immunity that mimicked a prior motion “because the maneuver is nothing but an effort to get around the time limit” to appeal the order denying the earlier motion. The court’s majority questioned the wisdom of Garvin, but declined to decide whether it should be overruled.
The whole opinion and dissent in Fairley v Fermaint, No. 06-2411 (2006), is available here.