Chris H. v. State of New York

SUMMARY ORDER Plaintiff-Appellant Chris Henry, proceeding pro se, appeals from the district court’s dismissal of his claims. The district court thereafter permitted Henry to file a letter setting out additional allegations. Henry filed such a letter and also appealed from the judgment, after which the district court denied Henry leave to amend “without prejudice to refiling after the appeal is decided.” S.D.N..Y. Dkt. N'o. 97 at 1. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We are obligated to consider our jurisdiction, even when not raised by the parties. Swede v. Rochester Carpenters Pension Fund, 467 F.3d 216, 219 (2d Cir. 2006). As relevant to this matter, the decision below will be appealable once there has been a "final decision” pursuant to 28 U.S.C. § 1291. See Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 66 (2d Cir. 2011), “A final judgment or order is one that conclusively determines all pending claims of all the parties to the litigation, leaving nothing for the court to do but execute its decision.” Petrello v. White, 633 F.3d 110, 113 (2d Cir. 2008). We currently lack jurisdiction to hear the instant appeal because the district court provided Henry with an opportunity to amend his pleadings. “A dismissal with leave to amend is a non-final order and not appealable.” Slayton v. Am. Exp. Co., 460 F.3d 215, 224 (2d Cir. 2006). Although “an appellant can render such a non-final order ‘final’ and appealable by disclaiming any intent to amend,” id., that did not occur here, as Henry sought to avail himself of the opportunity to amend prior to filing his notice of appeal. Nor did the entry of judgment render the district court’s decision final. “Appeala-bility turns on what has been ordered, not on how it has been described.” Spates v. Manson, 619 F.2d 204, 209 n.3 (2d Cir. 1980). Accordingly, the fact that judgment was entered by the district court prior to the filing of Henry’s notice of appeal is not decisive. “When a judgment has been so set forth and docketed, the question remains whether ... ‘the district court intended the judgment to represent the final decision in the case.’ ” Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir. 1986) (quoting Bankers Trust Co. v. Mallis, 436 U.S. 381, 385 n.6, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978)). Here, the provision of an opportunity to submit additional allegations reflects that the district court’s order was not intended to be the final decision in the case. That conclusion is bolstered by the district court’s subsequent order denying Henry leave to amend without prejudice to refiling after this appeal, which similarly anticipated revisiting Henry’s pleadings. Because “the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Accordingly, we DISMISS the appeal for lack of appellate jurisdiction. 1 Footnotes [1] We need not—indeed, we cannot—also remand because Henry's notice of appeal “was premature and did not divest the district court of jurisdiction.” Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 527 (2d Cir. 1990).