Case: 19-12439    Date Filed: 09/25/2020   Page: 1 of 4



                                                                  [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-12439
                          ________________________

                       D.C. Docket No. 1:18-cv-24190-RS



WILLIAM O. FULLER,
MARTIN PINILLA,

                                                              Plaintiffs-Appellees,
                                      versus

JOE CAROLLO,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                          _______________________

                               (September 25, 2020)

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

      Joe Carollo, a Miami City Commissioner, appeals from an order that Carollo

says denied him qualified immunity. But the district court granted Carollo’s

motion to dismiss and granted the plaintiffs, Miami businessmen William Fuller
              Case: 19-12439     Date Filed: 09/25/2020    Page: 2 of 4



and Martin Pinilla, leave to amend their complaint. That order is not appealable.

We dismiss Carollo’s appeal for lack of jurisdiction.

      Fuller and Pinilla allege that Carollo violated their rights to freedom of

speech and association under the First Amendment by retaliating against them for

their support of one of Carollo’s political opponents. They sued Carollo and others,

see 42 U.S.C. § 1983, and the case was referred to a magistrate judge for pretrial

proceedings. Carollo and other defendants not party to this appeal moved to

dismiss the complaint for failing to state a claim. Carollo’s motion sought

dismissal of the complaint based, in part, on qualified immunity.

      The magistrate judge recommended dismissing Fuller and Pinilla’s

complaint with leave to amend based on problems with the scope of the requested

relief. Because the magistrate judge recommended dismissing with leave to amend,

she also reviewed the other arguments presented in the motions to dismiss,

including Carollo’s argument for qualified immunity. The magistrate judge

concluded that Carollo was not entitled to qualified immunity because his alleged

conduct violated clearly established law.

      The district court adopted the magistrate judge’s report and granted the

motions to dismiss, with leave for Fuller and Pinilla to amend. The district court

also ordered that “Defendant Carollo’s Motion to Dismiss [be] DENIED as to




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qualified immunity for the reasons detailed in the Report and Recommendation.”

But given the dismissal of the complaint, that language had no effect.

      We have no choice but to sua sponte dismiss this appeal for lack of

jurisdiction. “[T]he existence of appellate jurisdiction in a specific federal court

over a given type of case is dependent upon authority expressly conferred by

statute.” Carroll v. United States, 

, 399 (1957). Carollo argues that we

have jurisdiction because “a district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291.” Mitchell v. Forsyth, 

, 530 (1985). But the district court did not enter an appealable order denying

Carollo qualified immunity. The district court instead dismissed Fuller and

Pinilla’s complaint and granted them leave to amend it.

      So a different finality rule applies: “[A]n order dismissing a complaint with

leave to amend within a specified time becomes a final judgment if the time

allowed for amendment expires . . . .” Auto. Alignment & Body Serv., Inc. v. State

Farm Mut. Auto. Ins. Co., 

, 719–20 (11th Cir. 2020). The district

court gave Fuller and Pinilla until June 28, 2019, to file an amended complaint. But

Carollo filed his notice of appeal on June 26, two days before the order granting

Fuller and Pinilla leave would have become final. And there is no later judgment

that could have cured Carollo’s premature notice of appeal. Fuller and Pinilla did



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in fact amend their complaint within the time allowed by the district court; on June

28 they filed a new pleading entitled “Second Amended Complaint.” And on

August 19, 2019, the district court stayed the proceedings on the Second Amended

Complaint pending this appeal. Because Carollo did not appeal from a final order

of the district court, we lack jurisdiction under section 1291. And no other statute

provides us with jurisdiction over the appeal.

      We DISMISS the appeal.




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