HOEFER v. Board of Education of the Enlarged City School District of Middletown, William Geiger, John Doe 1, John Doe 2, Defendants. (2018)

Dr. Kenneth Eastwood appeals from the district court’s denial of qualified immunity with respect to Francis Hoefer’s First Amendment claim against him. “[W]e have jurisdiction to review the denial of qualified immunity on an interlocutory basis provided ․ we can determine that issue as a matter of law.” Coollick v. Hughes, 699 F.3d 211, 218 (2d Cir. 2012). “We ․ have jurisdiction over the appeal to the extent it is based on either the undisputed facts or the version of the facts presented by [the plaintiff], and we will disregard any disputed facts or facts that contradict [the plaintiff]’s version of the events.” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 761 (2d Cir. 2003).

Eastwood asserts that the undisputed evidence shows he did not personally participate in any alleged First Amendment violation and, for that reason, cannot be held liable under 42 U.S.C. § 1983. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (“[I]t is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (citation omitted)). Assuming Eastwood has preserved this argument for appeal, he relies on disputed facts to support that argument. The video footage of the school board meeting does not lead to the undeniable conclusion, as Eastwood would have us determine, that he played no part in preventing Hoefer from speaking that evening. Because a jury could reasonably interpret the video footage as evidence of Eastwood participating in the alleged violation, genuine issues of fact exist as to this issue, and we cannot determine qualified immunity as a matter of law. We therefore lack jurisdiction over this appeal. See DiMarco v. Rome Hosp. & Murphy Mem’l Hosp., 952 F.2d 661, 666 (2d Cir. 1992).

We have considered Eastwood’s remaining arguments in favor of appellate jurisdiction and find them to be without merit. This appeal is DISMISSED.