APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, D.C. Civil No. 86-2913.
Before SEITZ, MANSMANN, Circuit Judges, and DEBEVOISE, District Judge.*fn*
Appellants Delaware County Prison Board of Inspectors and Warden Kenneth Matty appeal from the order of the district court denying their motion for summary judgment in a § 1983 suit. Because Appellants assert the defense of qualified immunity, the order denying their motion is an appealable "final decision." See Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). We therefore have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
Jamil Gandy was sentenced in the Delaware County Court of Common Pleas to a term of four to twenty-three months after pleading guilty to a charge of theft by receiving stolen property. Gandy was to serve two days a week in prison, and be furloughed for the remaining five days each week. His sentence was scheduled to start on Sunday, October 14, 1984 at 5:00 p.m., when he was due to report to the prison.
On October 11, 1984, Alesia Hynson, Gandy's ex-girlfriend, obtained a restraining order against Gandy from a different Delaware County judge from the sentencing judge, precluding Gandy from coming into contact with her or her two minor children. This protection from abuse order was based on Gandy's prior harassment and abuse of Hynson and her children.
Gandy failed to report to prison on October 14. The prison officials, pursuant to their oral "no show" policy, completed an incident report. Since Gandy was serving a weekend sentence, the report was to be delivered to the sentencing judge on the following morning, when the courts reopened. The judge would then be requested to issue a bench warrant for Gandy's arrest. Approximately seven hours after Gandy failed to report to the prison, he went to Hynson's place of employment and shot her. Her supervisor found her dead an hour later.
Hynson's mother initiated this suit on May 15, 1986, against various municipalities and their subdivisions, and public officials, seeking damages on behalf of Hynson's children and her estate. Plaintiff asserted that these groups, acting under color or state law, deprived decedent of rights, privileges and immunities secured to her by the constitution, in violation of 42 U.S.C. § 1983 (1982). As to defendants Delaware County Prison Board of Inspectors and Kenneth Matty, Hynson alleged in her amended complaint that Matty and the Prison Board condoned a pattern or practice of failing to take steps to insure that prisoners who fail to appear are apprehended, and that this failure resulted in the deprivation of Hynson's equal protection and due process rights.
Matty and the Prison Board of Inspectors filed a motion for summary judgment, claiming, inter alia, that they were protected by qualified immunity. The district court denied this motion without an opinion on October 31, 1986. This appeal followed.
On appeal, the Prison Board and Warden Matty contend that the district court erred in denying their motion for summary judgment because they are protected against civil liability by the doctrine of qualified immunity. Along with this entitlement, they contend that they enjoy a right not to go to trial, or face other burdens of litigation. See Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Mitchell, supra. Our review of this legal question is plenary. See Gans v. Mundy, 762 F.2d 338 (3rd Cir.), cert. denied, 474 U.S. ...