APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. D.C. Civil Action No. 71-337.
Seitz, Chief Judge, Hunter and Weis, Circuit Judges.
Plaintiff, a federal prisoner, brought this action under 28 U.S.C. § 1331 (1970) against the prison warden, Alldredge, and a prison guard, Cronrath, seeking $35,000 damages for the alleged unconstitutional taking of his property and interference with his access to the courts. Defendants moved for dismissal and both plaintiff and defendants moved for summary judgment. In support of their motions the defendants urged, inter alia, that they are immune from damage liability for their official acts. The District Judge denied the motions, declaring that plaintiff had stated a cause of action for damages and that there was at least one disputed material issue of fact: "whether Defendants were acting within the outer perimeter of their authority and duties and are therefore immune from liability for the acts alleged." On defendants' motion, the District Judge amended his order to indicate that a controlling question of law existed, decision of which would advance termination of the litigation, and this Court granted defendants leave, pursuant to 28 U.S.C. § 1292(b) (1970), to appeal from the denial of their motion for summary judgment.
Before addressing ourselves to the issues raised by the parties, one preliminary matter requires our attention. In his amending order, the District Judge stated that "the controlling question of law . . . is whether destruction of a prisoner's legal materials, properly seized as contraband, is automatically within the outer perimeter of the authority and duties of prison officials or, on the other hand, is within this perimeter only if it is shown to be reasonably related to the maintenance of discipline within the prison." Were we limited to decision of this question, we have serious doubts whether review under § 1292(b) would be appropriate. These doubts are occasioned by our belief that, while an answer to the question posed by the District Court could control disposition of the litigation, the question is not one "of law as to which there is substantial ground for difference of opinion" as required by § 1292(b). The District Court's question comprehends factual as well as legal matters, requiring a factual decision as to the defendants' duties as well as a legal decision as to the relationship that official action, to be immunized, must bear to the official's duties.
The parties did not brief or argue the question set forth by the District Judge. Instead, the parties' contentions involved the availability of any immunity to defendants, the standard for determining if immunity exists, and the sufficiency of the affidavits to establish such immunity as a matter of law. We presume that the court below intended these legal questions concerning defendants' immunity, which were raised in the motion seeking certification from the District Judge, to be considered under his statement of the controlling question.
Even were this not so, we would have jurisdiction to decide the issues presented to us. 28 U.S.C. § 1292(b) (1970) does not speak of the court of appeals deciding a question certified by the district court. Under § 1292(b) the district court is required to certify that an "order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation . . . ." Once the district court makes this certification, we may, in our discretion, permit appeal from the order. The district court has made the necessary certification; and we find that controlling questions of law, those briefed by the parties, exist. Since under the clear terms of § 1292(b) we are called upon not to answer the question certified but to decide an appeal, we do not find ourselves bound by the District Judge's statement of the issue. See J. Moore, Moore's Federal Practice, § 110.25. In keeping with the purpose of § 1292(b) to permit decision of legal issues as to which there is considerable question without requiring the parties first to participate in a trial that may be unnecessary, we proceed to a determination of the legal issues raised by the parties. See 1958 U.S. Code Cong. & Ad. News 5255-57.
We are concerned here only with the correctness of the District Court's denial of defendants' motion for summary judgment.*fn1 That denial must be affirmed if there was any material factual issue properly put in dispute by the parties. We summarize briefly the facts set forth in the affidavits, first outlining the facts not in dispute.
Following his conviction for bank robbery, plaintiff filed an appeal and a petition for habeas corpus, proceeding pro se in both actions. Later he sought the aid of a fellow inmate, Richard Hendrickson, in preparing supplemental briefs for those actions and provided Hendrickson with a large quantity of legal materials. Although there was a prison regulation in force at that time prohibiting any inmate from keeping another inmate's materials in his cell without prior authorization, neither Johnson nor Hendrickson applied for or received such authorization. While Hendrickson was still in possession of plaintiff's materials, Hendrickson was placed in disciplinary segregation. Cronrath, in compliance with standing orders, cleaned out Hendrickson's cell and removed all legal materials.
A factual dispute exists concerning the disposition of the legal materials. For our purposes, plaintiff's version must be accepted. Cronrath states that he saw no materials belonging to plaintiff. Plaintiff alleges that Cronrath destroyed his materials and his affidavit further states that Cronrath admitted having done so. Warden Alldredge took no disciplinary action against Cronrath, although requested to do so by plaintiff.
Defendants do not think the dispute over the disposition of the legal papers is material. They contend that summary judgment was required because the facts demostrate that defendants, who are federal executive officers, are being sued for actions taken with authorization in performance of their official duties and, thus, are entitled to immunity. Clearly, the dispute over disposition of plaintiff's papers is material unless defendants are immune. The District Judge concluded that a dispute also existed as to whether defendants' actions were authorized, i.e., that a factual dispute existed as to whether defendants were immune.
Plaintiff argues that the decision below was correct, but not for the reason given by the District Judge. Plaintiff argues that defendants cannot, under the facts stated in the affidavits, enjoy immunity from damage liability. In support of this argument, plaintiff advances two theories, either one of which would require affirmance here. First, he claims that executive officers have no immunity from suits alleging deprivation of constitutional rights. Second, plaintiff claims that these defendants cannot enjoy immunity because they are not officials of the type covered by executive ...