Jack McLaurin v. Keith Morton and Roger Marriott

CONTIE, Circuit Judge,

dissenting.

I do not believe this court has jurisdiction under the collateral order doctrine to review whether defendant has validly raised qualified immunity as a defense to liability in regard to the Fourteenth Amendment claim for the following reasons. In Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), the Supreme Court held that the denial of qualified immunity to a federal official is appealable as an interlocutory appeal under the collateral order doctrine. The Supreme Court explained that under the collateral order doctrine, first articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), an interlocutory decision of the district court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 472 U.S. at 524-25 , 105 S.Ct. at 2814 .

To qualify as an appealable collateral order, an order must: (1) “conclusively determine the disputed question;” (2) “resolve an important issue completely separate from the merits of the action;” and (3) “be effectively unreviewable on appeal from a final judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 , 109 S.Ct. 1494, 1498 , 103 L.Ed.2d 879 (1989), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2458 , 57 L.Ed.2d 351 (1978). The Supreme Court has clarified that the third prong of the test is satisfied only where the order at issue involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” Id. The Supreme Court in Mitchell held that the denial of summary judgment on the issue of qualified immunity satisfied these requirements and was appealable immediately, even though no final judgment in the case as a whole had been entered. 472 U.S. at 530 , 105 S.Ct. at 2817-18 . Mitchell interpreted Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), as recognizing that qualified immunity was an “entitlement” to immunity from suit and the burdens of a trial, not a defense to liability. Id. at 526, 105 S.Ct. at 2815 .

In reaching this conclusion, the Supreme Court first determined that absolute immunity was the “entitlement” of a government official not to have to answer for “his conduct in a civil damages action,” and that such an “entitlement” was lost forever if an immediate appeal of its denial was not allowed. Id. at 525 , 105 S.Ct. at 2814-15 . The Mitchell Court held that because of Harlow’s clarifications about the nature of qualified immunity, it was apparent that the “entitlement” of qualified immunity, like the “entitlement” of absolute immunity, would be lost forever if the claiming party was required to go through a trial, and, thus, early review was warranted. Id. at 526 , 105 S.Ct. at 2815 .

The Court stated the following in this regard:

The conception animating the qualified immunity doctrine as set forth in Harlow v. Fitzgerald, 457 U.S. 800 [ 102 S.Ct. 2727 , 73 L.Ed.2d 396 ] (1982), is that “where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Id., at 819 [ 102 S.Ct. at 2738 ], quoting Pierson v. Ray, 386 U.S. 547, 554 [ 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 ] (1967). As the citation to Pierson v. Ray makes clear, the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Harlow, 457 U.S. at 816 [ 102 S.Ct. at 2737 ], Indeed, Harlow emphasizes that even such *951 pretrial matters as discovery are to be avoided if possible, as “[inquiries of this kind can be peculiarly disruptive of effective government.” Id. at 817 [ 102 S.Ct. at 2737-38 ].

With these concerns in mind, the Harlow Court refashioned the qualified immunity doctrine in such a way as to “permit the resolution of many insubstantial claims on summary judgment” and to avoid “subject[ing] government officials either to the costs of trial or to the burdens of broad-reaching discovery” in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Id., at 817-818 [ 102 S.Ct. at 2737-38 ]. Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. See id., at 818 [ 102 S.Ct. at 2738 ]. Even if the plaintiffs complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face, the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.

472 U.S. at 525-26 , 105 S.Ct. at 2815 (emphasis added).

Although the district court’s order in the present ease is an appealable collateral order under Mitchell , the particular appeal which defendant seeks to bring is not a proper interlocutory appeal under the collateral order doctrine because it will not resolve the question of whether defendant is immune from suit for civil damages based on his conduct, which is the sole purpose for granting an interlocutory appeal in regard to qualified immunity in the first place. The rationale for granting an interlocutory appeal in order to determine whether a federal official should have to stand trial does not exist in the present case because defendant will have to stand trial and answer for “his conduct in a civil damages action” irrespective of the disposition of this appeal. On appeal, defendant is not contesting that he is immune from suit in regard to plaintiffs Eighth Amendment claim alleging a violation of the cruel and unusual punishment clause, and defendant will thus have to stand trial and answer for his conduct in a civil damages action in regard to this claim.

To understand this point, it is necessary-to delineate the unusual procedural posture of -this case. On February 21, 1992, plaintiff filed a pro se complaint alleging that defendants Morton and Marriott had violated his ' federal constitutional right against cruel and unusual punishment under the Eighth Amendment. On October 28, 1992, defendants moved for summary judgment. A magistrate issued a report and recommendation on February 26, 1993, denying defendants’ motion for summary judgment, finding that defendants were not entitled to dismissal of the Eighth Amendment claim as disputed issues of material facts remained surrounding the behavior of both defendants. In an order of May 17, 1993, the district court accepted the magistrate’s report and recommendation and denied defendants’ motion for summary judgment in regard to the Eighth Amendment allegation.

In the meantime, on March 23, 1993, after obtaining counsel, plaintiff filed an amended complaint. In addition to alleging a violation of his Eighth Amendment right to be free from cruel and unusual punishment, he alleged that his constitutional right to due process had been violated under the Fourteenth Amendment by the use of mace. Plaintiff argued that this use violated a state-created liberty interest that gas would not be used unless one or more of the criteria contained in a state policy directive were found to exist. Defendants responded that they were entitled to qualified immunity in regard to both claims and again made a motion for summary judgment. On March 2, 1994, the magistrate issued a report and recommenda *952 tion, stating that defendant Morton was entitled to qualified immunity, but that defendant Marriott’s motion for summary judgment should be denied as he was not entitled to qualified immunity and genuine issues of material fact remained. The district court adopted the magistrate’s report and recommendation on March 23, 1994 and set the case for trial. On April 11, 1994, defendant Marriott filed an interlocutory appeal based on the district court’s denial of qualified immunity in regard to the Fourteenth Amendment claim. As stated on page 4 of the Brief of Defendant-appellant, defendant Marriott’s appeal is limited to the district court’s denial of qualified immunity in regard to the Fourteenth Amendment claim. Defendant is specifically not appealing the district court’s May 17, 1993 denial of his motion for summary judgment in regard to the cruel and unusual punishment claim under the Eighth Amendment, and therefore there will be a trial in regard to this issue.

Because of the procedural posture of this case, I do not believe this court has jurisdiction to hear an interlocutory appeal. The purpose of the doctrine of qualified immunity is to shield public officials from damages actions unless their conduct was unreasonable in light of clearly established law. Elder v. Holloway, — U.S. -, -, 114 S.Ct. 1019, 1021 , 127 L.Ed.2d 344 (1994). On appeal, defendant Marriott is not arguing that he is immune from suit and should be shielded from a civil damages action, but, in essence, is arguing that plaintiff fails to state a claim for relief under the Fourteenth Amendment because no state-created liberty interest was violated. However, this argument is not the proper subject of an interlocutory appeal. The purpose of affording public officials qualified immunity from suit is to protect them from the burden of going to trial and from “undue interference with their duties.” Id. at-, 114 S.Ct. at 1022 . This purpose is not met in the present case. Usually in a ease involving the denial of qualified immunity to a public official, absent an immediate appeal, “the central benefits of qualified immunity — avoiding the costs and general consequences of subjecting public officials to the risks of discovery and trial” — are lost. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., — U.S. -, -, 113 S.Ct. 684, 687 , 121 L.Ed.2d 605 (1993). Therefore, an interlocutory appeal is necessary to ensure that the entitlement not to stand trial is preserved. In the present case, there is no need for an immediate interlocutory appeal in order to safeguard this entitlement, because defendant will stand trial in regard to the Eighth Amendment claim irrespective of the outcome of this appeal. As the Third Circuit in Schrob v. Catterson, 967 F.2d 929, 942 (3rd Cir.1992) pointed out, there is a price to be paid for allowing an immediate interlocutory appeal in regard to a denial of sovereign immunity when other claims for money damages are pending because it allows a party to delay the normal progress of the cause before the district court. I believe in the present case, the majority’s holding results in a needless delay in resolving this case, a delay in which the memories of witnesses will become less clear, and in judicial resources being needlessly expended by allowing piecemeal litigation.

As the Supreme Court stated in Mitchell , in an interlocutory appeal, an appellate court must consider the plaintiffs factual allegations concerning the defendant’s actions in resolving the immunity issue to determine whether the law clearly proscribed these actions. 472 U.S. at 528 , 105 S.Ct. at 2816-17 . In the present case, the majority is unable to determine whether the law clearly proscribed defendant’s actions without also reviewing the Eighth Amendment claim. As the Supreme Court stated, an appellate court reviewing the denial of a defendant’s claim of qualified immunity “need not ... determine whether the plaintiffs allegations actually state a claim.” Id. However, in the present ease, this is what the majority has done— determined in an interlocutory appeal that plaintiffs allegations do not state a Fourteenth Amendment claim. I do not believe this is the proper subject of an interlocutory appeal in regard to qualified immunity. The only issue this court may determine in an interlocutory appeal reviewing qualified immunity is whether or not, as a matter of law, defendant is immune from suit and need not stand trial because the actions alleged do not violate clearly established law. This court is *953 unable to determine whether the law clearly proscribed the actions defendant took in the present case, because this court has not been asked to review defendant’s conduct under the cruel and unusual punishment clause of the Eighth Amendment. Under the Supreme Court’s opinion in Mitchell , this court does not have jurisdiction to review in an interlocutory appeal whether defendant validly raises qualified immunity as a defense to liability in regard to the Fourteenth Amendment claim, when there will be a trial in regard to the Eighth Amendment claim based on the same underlying set of facts concerning defendant’s conduct. In an interlocutory appeal involving qualified immunity, the reviewing court must determine whether a defendant is immune from suit and need not stand trial or whether he is not immune from suit and must stand trial. The majority in the present case is holding that defendant is immune from suit in regard to the Fourteenth Amendment claim, although defendant is not contesting on appeal that he is immune from suit in regard to an Eighth Amendment claim. I believe that because defendant fails to claim that he is completely “immune from suit” (in other words, that he is entitled not to stand trial based on his actions), he is not bringing a proper interlocutory appeal under the collateral order doctrine. Although the majority has found that the policy directive does not create a liberty interest, this finding has no bearing on the issue of whether defendant is completely immune from suit and whether this ease will go to trial or not. The identical set of facts, for which the majority states defendant is immune from suit under the Fourteenth Amendment, will be reviewed at trial under the Eighth Amendment. At trial, defendant presumably would be free to raise qualified immunity as a defense to liability in regard to the Eighth Amendment claim. Such piecemeal litigation is at odds with the rationale for allowing interlocutory appeals on the issue of qualified immunity in the first place. See Green v. Brantley, 941 F.2d 1146, 1154-56 (11th Cir.1991) (Johnson, J., dissenting) (majority overestimated the benefits of permitting an immediate appeal, since the same evidence needed to prove the claim from which the defendant may be immune is also needed to prove the claims that must go forward in any event). Alternatively, defendant could try to argue that the majority’s opinion is res judicata on the issue of immunity and that he need not stand trial at all because he is immune from suit.

Finally, the present appeal does not come within the collateral order doctrine because the issue raised would not be effectively un-reviewable on appeal from a final judgment. As this court stated in United States v. One Juvenile Male, 40 F.3d 841 (6th Cir. 1994), the third prong of the collateral order doctrine is satisfied only if the appeal involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” The appeal in the present case does not involve an asserted right — the entitlement not to stand trial— which must be protected by granting an immediate interlocutory appeal. As this court in Haynes v. Marshall, 887 F.2d 700, 703 (6th Cir.1989) stated:

If the issue sought to be reviewed under the collateral order doctrine relates to a claim of immunity from suit, an order denying that immunity must be reviewed before the proceedings terminate lest the purpose for the immunity be lost. After final judgment, it is too late to conclude that a party should not have been subjected to trial. In contrast, a claim of immunity from liability, like a challenge to jurisdiction, is effectively reviewable after a final order and does not fit within the collateral order exception. See, e.g., Marrical v. Detroit News, Inc., 805 F.2d 169, 172 (6th Cir.1986) (denial of a claim to immunity from liability is not an immediately appealable collateral order).

Id. (footnote omitted).

For these reasons, I do not believe that defendant may make a piecemeal interlocutory appeal — contesting on appeal that he is immune from suit under the Fourteenth Amendment, but not contesting on appeal that he is immune from suit under the Eighth Amendment. To meet the requirements for raising the issue of qualified immunity in an interlocutory appeal as articulated by the Supreme Court in Mitchell , defendant would have to argue that his conduct is im *954 mune from suit under both the Fourteenth and the Eighth Amendment because his conduct did not violate any clearly established constitutional rights. Rather than using qualified immunity as an entitlement not to stand trial, defendant is using qualified immunity as a defense against liability solely in regard to the Fourteenth Amendment claim. As the Supreme Court held in Mitchell , “the entitlement is an immunity from suit rather than a mere defense to liability.” 472 U.S. at 526 , 105 S.Ct. at 2815 . Because defendant is not claiming that he is completely immune from suit and is entitled not to stand trial, there is no reason for this court to hear an immediate interlocutory appeal in order to keep the ease from erroneously going to trial. In granting an interlocutory appeal on the issue of qualified immunity, the Supreme Court in Mitchell was concerned about the consequences “of subjecting officials to the risks of trial,” the burdens of discovery, and “the distraction of officials from their governmental duties.” Id. Since on appeal defendant does not contest the district court’s denial of his motion for summary judgment in regard to the Eighth Amendment claim, the case will go to trial on this issue, and defendant will be spared none of the consequences that the grant of an interlocutory appeal regarding qualified immunity is supposed to avoid. On balance, I do not believe the justifications for permitting an immediate interlocutory appeal stated by the majority are compelling and the benefits discussed are illusory. I agree with the Third Circuit in Schrob, 967 F.2d at 942 , that the narrow range of appeals permitted under the collateral order doctrine is not met when there is a denial of immunity but other claims for money damages based on the same common nucleus of facts remain.

To conclude, because defendant does not claim that he is immune from suit and entitled not to stand trial, but instead raises qualified immunity as a defense to liability solely in regard to the Fourteenth Amendment claim, defendant has not met the requirements which the Supreme Court stated in Mitchell v. Forsyth are the reasons for granting an interlocutory appeal under the collateral order doctrine. Therefore, I believe this appeal should be dismissed for lack of jurisdiction, and the case should be remanded to the district court so that it may proceed to trial.