Bines v. Kulaylat

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

6-12-2000

Bines v. Kulaylat

Precedential or Non-Precedential:

Docket 98-1635

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Filed June 12, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1635

FRANK BINES

v.

N. KULAYLAT;

MITCHELL SADAR; N. HOLLAND-HULL;

SADAR PSYCHOLOGICAL SERVICE;

DENNIS MOYER, Dr.; DORIS STABLEY;

SKIP FIELDS; SPECIAL NEEDS UNIT, S.N.U.;

MARY ANN WILLIAMS; THOMAS D. STACHELEK, MR.;

DONALD T. VAUGHN, MR.;

DEPARTMENT OF CORRECTIONS

NUHAD KULAYLAT, M.D.,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-01528)

District Judge: Honorable Robert S. Gawthrop, III

Submitted Under Third Circuit LAR 34.1(a)

April 10, 2000

BEFORE: NYGAARD, ALITO, and GIBSON,*

Circuit Judges.

(Filed: June 12, 2000)

_________________________________________________________________

* The Honorable John R. Gibson, United States Circuit Judge for the

Eighth Circuit Court of Appeals, sitting by designation.

Alan S. Gold, Esq.

Monaghan & Gold

7837 Old York Road

Elkins Park, PA 19027

Attorney for Appellant

Robert K. Kalmbach, Esq.

418 West State Street

Kennett Square, PA 19348

Attorney for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellee Frank Bines, a state prison inmate, alleges that

numerous defendants are liable for providing him with

inadequate medical care during his incarceration. Appellant

Nuhad Kulaylat, a contract physician, is one of the

defendants named in Bines' complaint. Kulaylat moved for

summary judgment based, inter alia, on a good-faith

defense. The District Court denied the motion, concluding

that genuine issues of material fact remain in dispute.

Kulaylat appeals, arguing that the District Court erred by

denying summary judgment based on his good-faith

defense because the record does not contain any evidence

that he acted in bad faith. He further argues that Bines

waived any opposition to the defense when he failed to

respond to the motion for summary judgment. Although he

failed to assert it as a basis for summary judgment,

Kulaylat now asks us to decide whether he is entitled to

qualified immunity.

We do not reach the merits of Kulaylat's arguments,

because we hold that an order denying summary judgment

based on a good-faith defense does not constitute afinal,

collateral order appealable under 28 U.S.C. S 1291.

Because we hold that such an order is not final, and that

the qualified-immunity issue is not properly before us, we

will dismiss this appeal for lack of jurisdiction.

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I. Background

At all times relevant to this appeal, Frank Bines was an

inmate at the Commonwealth of Pennsylvania's State

Correctional Institution at Graterford. Dr. Nuhad Kulaylat

was a private physician who worked as an independent

contractor for Correctional Physician Services, Inc.

Correctional Physician Services was a private corporation

under contract with the Pennsylvania Correctional System

to provide certain specified medical services to Graterford's

inmates. Through this chain of contractual relationships,

Bines was referred to Kulaylat for medical treatment.

During a November 1995 medical consultation, Kulaylat

informed Bines that Bines was infected with the human

immunodeficiency virus (HIV). The virus had apparently

caused lymph nodes on Bines' neck and chest to swell and

harden. Complaining that the swelling was painful, Bines

requested that Kulaylat either resect the lymph nodes or

prescribe palliative medication. Kulaylat concluded that

there was no medical reason to excise the swollen lymph

nodes and declined to do so. He also concluded that"Bines

did not show any indication of suffering from severe and

substantial pain as a result of the lymph nodes," and so

prescribed no pain medication at that time. See App. at

93a.

Over the next two months, Kulaylat examined Bines on at

least two more occasions. Each time, Bines renewed his

request that his swollen lymph nodes be removed, or that

Kulaylat prescribe medication to ease the pain they were

causing. Each time, Kulaylat concluded that neither were

medically necessary. He did, however, prescribe other

medications, as well as nutritional supplements, to treat

other symptoms associated with Bines' HIV infection.

In February 1996, Bines filed a civil complaint against

the Pennsylvania Department of Corrections, various

Department employees, Kulaylat and a number of other

private defendants. Although the complaint alleged

numerous violations of various constitutionally protected

rights, only one claim is relevant to this appeal. According

to that claim, Bines alleged that the defendants had acted

with deliberate indifference to his medical needs and

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violated the Eighth Amendment's protection against cruel

and unusual punishment. For present purposes, we need

not recite the allegations more specifically except to note

that Bines accused Kulaylat of acting with deliberate

indifference by repeatedly declining Bines' requests to treat

his painful and swollen lymph nodes.

In his answer to Bines' complaint, Kulaylat pleaded

twenty-three separate affirmative defenses, including both

qualified immunity and good faith. He subsequently moved

the District Court for summary judgment based on, inter

alia, his good-faith defense. Although the motion also

asserted three other grounds for summary judgment,

qualified immunity was not among them. Bines did not

oppose the motion. See Dist. Ct. Order at 2.

The District Court rejected Kulaylat's motion for

summary judgment on all grounds asserted therein. With

respect to Kulaylat's good-faith defense, the court

concluded that summary judgment was inappropriate

because there remained genuine issues of material fact

concerning Kulaylat's state of mind. In other words, the

District Court concluded that the "sparse" record before it

was insufficient to support Kulaylat's claim that he had

treated Bines in the good-faith belief that his treatment did

not deprive Bines of his constitutional rights. See Dist. Ct.

Order at 4; see also Def.'s Motion for Summary Judgment

at 6:17-19 (App. at 66a). The court also noted, however,

that Kulaylat could renew his motion once the record had

been further developed. See id. Instead, Kulaylat filed this

interlocutory appeal, arguing that the District Court erred

by denying summary judgment on his good-faith defense.

He also asks us to determine in the first instance whether

he is entitled to qualified immunity.

II. Discussion

A. The Good-Faith Claim

As a general rule, we have no jurisdiction under 28

U.S.C. S 1291 to review interlocutory orders such as a

denial of summary judgment. Nevertheless, the collateral-

order doctrine excepts a narrow range of interlocutory

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decisions from the general rule. See Cohen v. Beneficial

Indust. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949);

We, Inc. v. City of Philadelphia, 174 F.3d 322, 324 (3d Cir.

1999).

There is no question that orders denying absolute

immunity are reviewable on interlocutory appeal. See e.g.,

Nixon v. Fitzgerald, 457 U.S. 731 (1982); Helstoski v.

Meanor, 442 U.S. 500 (1979); Abney v. United States, 431

U.S. 651 (1977). In Mitchell v Forsyth, the Supreme Court

extended the doctrine to include denial of claims to

qualified immunity, though only to the extent such denial

turns on an issue of law rather than fact. 472 U.S. 511,

525 (1985).

The Supreme Court has not decided whether denial of

summary judgment based on a good-faith defense can ever

fall within the collateral-order doctrine. We have not, nor

has any other circuit court of appeals, decided the issue.

Nevertheless, we find our course amply guided by previous

decisions in which we have addressed the collateral-order

doctrine. Those decisions clearly indicate that denial of

summary judgment based on a good-faith defense does not

permit an interlocutory appeal.

We have repeatedly expressed our concern that the

collateral-order doctrine not "swallow" thefinal-judgment

rule, and have " `consistently construed the [doctrine]

narrowly rather than expansively.' " Transtech Indus., Inc. v.

A&Z Septic Clean, 5 F.3d 51, 57 (3d Cir. 1993) (quoting

Lusardi v. Xerox Corp., 747 F.2d 174, 176-77 (3d Cir. 1984)

and citing Praxis Properties, Inc. v. Colonial Sav. Bank,

s.l.a., 947 F.2d 49, 54 (3d Cir. 1991)); see also We, Inc.,

174 F.3d at 324; Demenus v. Tinton 35 Inc., 873 F.2d 50,

53 (3d Cir. 1989); Borden Co. v. Syk, 410 F.2d 843 (3d Cir.

1969)).

In deciding whether a challenged order fits within the

collateral-order doctrine, we have applied the three-prong

analysis established in Coopers & Lybrand v. Livesay, 437

U.S. 463, 98 S. Ct. 2454 (1978). See Transtech Indus., 5

F.3d at 56-57. To fall within the doctrine, "the order must:

(1) conclusively determine the disputed question; (2) resolve

an important issue completely separable from the merits of

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the action; and (3) be effectively unreviewable on appeal

from a final judgment." Transtech Indus. , 5 F.3d at 55

(citing Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at

2457).

Applying those factors in this case, we first conclude that

denial of summary judgment based on Kulaylat's good-faith

defense does not conclusively determine the disputed

question. The District Court has merely concluded that the

current record leaves open genuine issues of material fact

concerning Kulaylat's state of mind at the time he treated

Bines. The court left open the possibility that Kulaylat

could renew his motion for summary judgment once the

record is more fully developed.

In any event, denial of summary judgment does not

preclude Kulaylat from asserting, or the fact finder from

accepting, his good-faith defense at trial. And, significantly,

unlike qualified immunity, a successful good-faith defense

merely protects the defendant from liability, not from suit.

See Wyatt v. Cole, 504 U.S. 158, 165 (1992) (concluding

that the entitlement to a good-faith defense would not

entitle private parties to the qualified immunity from suit

accorded to government officials). Cf. We, Inc., 174 F.3d at

330 (holding that the Noerr-Pennington doctrine provides

immunity from liability, not from suit).

Second, Kulaylat's good-faith claims are not completely

separable from the merits of the underlying action. Unlike

the objective test applied to claims of qualified immunity,

see Harlow v. Fitzgerald, 457 U.S. 800 (1982), good faith

turns on the defendant's subjective state of mind. We

cannot determine whether Kulaylat acted with deliberate

indifference to Bines' serious medical needs without

addressing factual questions that the District Court has yet

to resolve.

Third, Kulaylat's good-faith defense will not be effectively

unreviewable on appeal from final judgment. As already

noted, the defense, if accepted, does not make him immune

from suit. Thus, requiring him to await final judgment

before bringing his appeal would not cause the irretrievable

loss of any right to which he is entitled. If the jury returns

a verdict against him, Kulaylat may still move the court to

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grant judgment as a matter of law, or to grant a new trial.

If the court declines, he may still appeal the final judgment

to this court. Thus, Kulaylat's good-faith claim fails to

satisfy any of the collateral-order doctrine's three

requirements for interlocutory appeal. We therefore hold

that we lack jurisdiction to review denial of that claim in

this interlocutory appeal.

B. The Qualified-Immunity Claim

In addition to seeking interlocutory review of his good-

faith defense, Kulaylat also invites us to consider his claim

to qualified immunity. We decline to do so because Kulaylat

failed to raise qualified immunity as a basis for summary

judgment. As a general rule, we will not review an issue on

appeal that has not been raised below. See Pritzker v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110,

1115 (3d Cir. 1993); see also Singleton v. Wulff , 428 U.S.

106, 120 (1976). Although we have made exceptions where

failure to consider the issue would result in manifest

injustice, see Pritzker, 7 F.3d at 1115 (citing Houghton v.

American Guar. Life Ins. Co., 692 F.2d 289, 294 (3d Cir.

1982)), we find no potential for manifest injustice here. The

interlocutory nature of this appeal leaves Kulaylat with full

opportunity to assert his qualified-immunity claim in the

District Court.

The only remaining questions, which revolve around

Kulaylat's subjective state of mind, are factual rather than

legal. The District Court concluded that "[v]iewed in the

light most favorable to the plaintiff, [the record] establishes

a material fact concerning Dr. Kulaylat's mental state, that

is, whether he acted with deliberate indifference." Dist. Ct.

Order at 3. Accordingly, we would lack jurisdiction to

consider Kulaylat's qualified-immunity claim even had he

asserted it as a basis for summary judgment below.

III. Conclusions

Denial of a motion for summary judgment based on a

good-faith defense does not satisfy the requirements of the

collateral-order doctrine. Accordingly, we hold that we lack

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jurisdiction to review the good-faith claim presented in this

interlocutory appeal.

We further hold that because Kulaylat did not assert his

qualified-immunity claim below, he is barred from raising it

in this appeal. Therefore, we will dismiss this appeal, and

all issues it raises, for lack of appellate jurisdiction.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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