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Giuffre v. Bissell

argued: May 2, 1994.


On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 92-02014).

Before: Greenberg and Garth, Circuit Judges, and Robreno, District Judge*fn*

Author: Garth


GARTH, Circuit Judge :

This appeal requires us to revisit the doctrine of absolute and qualified immunity in order to determine if we may review at this time the district court's order which denied summary judgment to the individual defendants. Insofar as the appellee Giuffre's complaint alleges violations of his Fifth, Sixth, and procedural Fourteenth Amendment rights, we hold that the individual defendants are entitled to qualified immunity, and to that extent reverse the district court's order. We also hold that the district court correctly denied absolute immunity at this time for Somerset County Prosecutor Nicholas Bissell. Without expressing any views as to the merits of Giuffre's remaining claims, we dismiss the balance of the appeal for lack of appellate jurisdiction.


The appellants, Prosecutor Bissell and five of his current and former investigative officers (collectively, "the appellant officials"), and the County of Somerset ("the County"), appeal the district court's order denying their motion for summary judgment, which was brought against the appellee, James J. Giuffre.

Giuffre's claims against the County and the appellant officials arose from Giuffre's arrest on May 10, 1990 following an official investigation by the Somerset County Prosecutor's Office and other investigative authorities of an alleged drug conspiracy. Within 24 hours of his arrest, and without representation by counsel, Giuffre conveyed ownership to the County of two building lots he owned in neighboring Hunterdon County. That transaction was ostensibly authorized under the forfeiture provisions of N.J.S.A. 2C:64-1*fn1 because Giuffre signed a written statement admitting that the two building lots were purchased in part with illegal drug proceeds. The forfeited building lots were sold seven months later at public auction, and the drug charges against Giuffre were administratively dismissed by the Prosecutor's Office on October 31, 1991, after Giuffre cooperated in an ongoing drug investigation. Although the statute of limitations at this juncture has yet to run, Giuffre still has not been indicted.*fn2

On May 7, 1992, Giuffre filed the instant action, seeking compensatory and punitive damages against the County and against the appellant officials, both in their official and individual capacities, for violations of 42 U.S.C. § 1983, the United States Constitution, and New Jersey law.*fn3 In his complaint against the County and the officials, Giuffre also sought judgment rescinding the sale of his forfeited lots, and a declaratory judgment that the officials conspired to violate and/or violated his constitutional and civil rights, and conspired to deprive him of his property through fraud, duress and without due process of law.

The County and the officials moved for summary judgment, arguing, among other things, that the individual officials were entitled to qualified and/or absolute immunity. Their summary judgment motion was supported by the depositions of the appellant officials and other witnesses who denied the allegations in Giuffre's complaint. In opposition to summary judgment, Giuffre presented his own deposition evidence, which created a dispute of fact over the circumstances under which he conveyed title to his two building lots. After considering the parties' arguments and conflicting evidence, the district court on July 29, 1993 denied the defendants' motion for summary judgment.

The district court determined that summary judgment was inappropriate because Giuffre's deposition testimony raised genuine issues of material fact regarding: (1) the appellant officials' allegedly coercive and unconstitutional conduct toward Giuffre; (2) the existence of an alleged civil rights conspiracy; (3) the existence and effects of the County's alleged policy of targeting criminal defendants who owned substantial assets, and (4) the alleged failure of the County to train and supervise properly the appellant officials. The district court did not discuss at length the immunity defenses raised by the individual officials. The court ruled that Prosecutor Bissell was not entitled to absolute prosecutorial immunity because Bissell's actions could be characterized as investigatory. It also ruled that none of the individual officials was entitled to qualified immunity because Giuffre had raised a genuine issue of material fact as to whether any clearly established laws had been violated by the officials.

On appeal, the County and the officials contend, as they did before the district court, that they were entitled to summary judgment because: (1) Giuffre has failed to state a viable cause of action under § 1983 for violations of his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; (2) the officials lacked the requisite personal involvement and specific conduct to be held liable under § 1983 for federal constitutional violations or under the New Jersey Tort Claims Act for state law violations; (3) the individual officers are shielded, in any event, from suit on Giuffre's federal and pendent state claims under principles of absolute and/or qualified immunity; and (4) there is insufficient evidence to hold the County liable under any of the legal theories stated by Giuffre.

We will affirm that portion of the July 29, 1993 order of the district court denying Prosecutor Bissell absolute immunity, and we will reverse that order only to the extent that it denies the officials qualified immunity for alleged violations of the Fifth and Sixth Amendments, and the procedural due process guarantee of the Fourteenth Amendment. We will dismiss the balance of this appeal for lack of appellate jurisdiction.


The County and the appellant officials urge us to reverse the district court's denial of their motion for summary judgment. Generally, we ordinarily have no jurisdiction to review orders denying summary judgment because such orders are not final within the requirements of 28 U.S.C. § 1291. W.D.D., Inc. v. Thornbury Township, 850 F.2d 170, 171 (3d Cir.) (in banc), cert. denied, 488 U.S. 892, 102 L. Ed. 2d 218, 109 S. Ct. 228 (1988).

The Supreme Court has held, however, that an order denying qualified or absolute immunity, to the extent that the order turns on an issue of law, is immediately appealable under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). That is because the immunity doctrine does not serve merely as a public official's defense to liability; rather it shelters that official from having to stand trial. This immunity from suit is lost when a case is erroneously permitted to go to trial. Id. at 526-27; Brown v. Grabowski, 922 F.2d 1097, 1105 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991). We thus have appellate jurisdiction to consider the immunity issues raised by the individual officials.


Up to this point, Giuffre's claims for declaratory judgment and for judgment rescinding the forfeiture of his lots have not been ruled upon. In addition, the district court has refused to certify as final its order denying summary judgment on Giuffre's claims for money damages, pursuant to 28 U.S.C. § 1292 (b).*fn4 Giuffre's damage claims, however, are joined in his complaint with an ostensible claim for prospective injunctive relief. We have held in Prisco v. United States Dep't of Justice, 851 F.2d 93, 94 (3d Cir. 1988), cert. denied sub nom. Smith v. Prisco, 490 U.S. 1089, 104 L. Ed. 2d 985, 109 S. Ct. 2428 (1989), that the inclusion of a viable claim for prospective equitable relief bars interlocutory review of a district court's denial of immunity.

Our Prisco opinion explained why the Mitchell collateral order doctrine is not available for a joinder of claims for injunctive relief and money damages:

The marginal benefit to a governmental official from an interlocutory review of a ruling that proof of damages should not be heard is so slight that it cannot outweigh the systemic harms from permitting piecemeal interlocutory review of discrete issues in a case which, even against that official, will be ongoing.

Id. at 96. Although we alone among the courts of appeals adhere to such a rule, we nevertheless are bound to follow Prisco in those cases where a plaintiff states a colorable claim for injunctive relief in addition to a claim for damages. See, e.g., Burns v. County of Cambria, 971 F.2d 1015, 1019 (3d Cir. 1992), cert denied sub nom. Roberts v. Mutsko, 122 L. Ed. 2d 357, 113 S. Ct. 1049 (1993); see also Internal Operating Procedures, United States Court of Appeals for the Third Circuit, Rule 9.1 ("The holding of a panel in a reported opinion is binding on subsequent panels . . . . in banc consideration is required [to overrule such a holding].").

Proper application of the Prisco rule requires an initial determination of whether a claim for injunctive relief is, on its face, colorable. Acierno v. Cloutier, F.3d , 1994 WL 318783 at 8 (slip op. at 21) (3d Cir. July 7, 1994) ("Prisco allows us to 'examine[] the complaint carefully to determine whether any of its allegations would permit proof of facts warranting any prospective relief against [the defendant officials].'") (quoting Prisco, 851 F.2d at 96). In the instant case, Giuffre's complaint clearly does not state a colorable claim for prospective equitable relief.

It is obvious to us that Giuffre's claim for rescission of the forfeiture of his property to the County is not viable. Giuffre's counsel admitted as much at oral argument when he acknowledged that Giuffre "would have a tough time rescinding" sale of the lots because "at least one [of the lots] is in the hands of a bonafide purchaser." Transcript of Oral Argument at 45-46. Moreover, as the appellant officials point out, Giuffre has failed to name as defendants those individuals whom he claims conspired with the officials to acquire ownership of his building lots. Even if the failure to name those individuals was not fatal to a claim of rescission, it is the County and not the officials that would be subject to the prospective relief sought by Giuffre. Giuffre transferred title of the two building lots to the County, and the County sold the lots at public auction.

Hence, the individual officials could not rescind the sale, in any event, and would be liable only for compensatory and punitive damages. Indeed, counsel conceded at oral argument that Giuffre is seeking only money damages in his action against the County and the officials.*fn5 As such, the relief sought by Giuffre is purely legal, and cannot be cast as prospective or equitable in character.

Because the actual remedy sought by Giuffre does not involve prospective, equitable relief, we hold that the rule of Prisco is inapplicable here. Acierno, F.3d , 1994 WL 318783 at 9 (slip op. at 22) (holding that the lack of any viable available injunctive relief against defendant officer, as alleged in the plaintiff's complaint, entitled the defendant to immediate review of denial of summary judgment on immunity grounds). Without immediate appellate review, the officials in the instant case would be effectively deprived of their immunity from suit -- their "right not to stand trial" -- on Giuffre's federal claims for damages, merely because Giuffre has included in his complaint what he himself concedes is a nonactionable claim.

To hold otherwise might encourage future plaintiffs to add frivolous equitable claims to their damage claims so as to defeat the immediate appeal of orders denying official immunity. See Schrob v. Catterson ("Schrob II "), 967 F.2d 929, 940-41 (3d Cir. 1992) (noting that other courts of appeal which have rejected Prisco have expressed such a concern); cf. Scott v. Lacy, 811 F.2d 1153, 1154 (7th Cir. 1992) ("plaintiffs who wished to harass officials to travail would need only demand equitable relief, defeating the defendants' opportunity to obtain prompt review").


Giuffre argues, however, that we are without jurisdiction to hear the instant appeal because the district court denied immunity due to the existence of material disputes of fact. Contrary to Giuffre's position, the immediate appealability of orders denying immunity is not automatically defeated merely because some issues of material fact remain. Kulwicki v. Dawson, 969 F.2d 1454, 1460 (3d Cir. 1992) ("Insofar as there may be issues of material fact present in a case on appeal, we would have to look at those facts in the light most favorable to the non-moving party."). In a non-Prisco case such as this one, we have jurisdiction to determine, as a matter of law, whether the individual officials' alleged conduct violated any "clearly established" constitutional rights. Mitchell, 472 U.S. at 530; Brown v. Grabowski, 922 F.2d at 1109.

Here, our task is somewhat complicated by the fact that the district court failed to make the threshold determination of whether the officials were entitled to immunity in the face of Giuffre's factual allegations. The district court never determined, as it was obliged to do, "'whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.'" Brown v. Grabowski, 922 F.2d at 1109 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1981)). Indeed, the district court did not even identify the specific constitutional rights allegedly violated by the individual officials. It merely concluded "that whether Defendants violated any clearly established laws constitutes a genuine issue of material fact." Dist. Ct. Slip Op. at 8.

As part of our plenary review of a district court's immunity determination, we have jurisdiction to determine whether the plaintiff has asserted a violation of a constitutional right under 42 U.S.C. § 1983. See Siegert v. Gilley, 500 U.S. 226, 231, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991); D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1369 (3d Cir. 1992) (in banc), cert. denied, 122 L. Ed. 2d 354, 113 S. Ct. 1045 (1993). That is because "'[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.'" D.R. by L.R., 972 F.2d at 1368 (quoting Siegert v. Gilley, 500 U.S. at 232) (emphasis added in D.R. by L.R.).

Before us, Giuffre identifies the federal civil rights and constitutional claims against the individual officials in Counts 1, 2, and 3 of his complaint as sounding in the Fifth, Sixth, and Fourteenth Amendments. We have jurisdiction to consider the individual officials' assertion of entitlement to immunity to suit on those claims, but only to the extent that we can make that determination as a matter of law.*fn6 See Burns, 971 F.2d at 1019.

As we have previously indicated, however, we are without jurisdiction to review the denial of summary judgment on the remaining claims raised by Giuffre against the County and the appellant officials. Those remaining claims are not subject to immunity under the Mitchell doctrine, and thus cannot be reviewed on interlocutory appeal.

The denial of summary judgment on Giuffre's claims in Counts 4 and 5 of his complaint, seeking damages against Prosecutor Bissell and Chief Thornburg for failing to train and supervise subordinates in the Prosecutor's Office, is not immediately appealable. That is because the County is the real party in interest with respect to these claims, and the County cannot assert a qualified immunity defense so as to qualify, under Mitchell, for review of the district court's summary judgment ruling. Brown v. Grabowski, 922 F.2d at 1105; see also Owen v. City of Independence, 445 U.S. 622, 638, 650, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980) (holding that § 1983 does not accord municipal corporations a qualified immunity for their good-faith constitutional violations).

That portion of the interlocutory order of the district court denying the appellant officials immunity on Giuffre's pendent state claims, contained in Counts 6, 7, and 8 of Giuffre's complaint, also is unreviewable at this time. As we explained in Brown v. Grabowski, decisions concerning immunity from suit on federal claims fall within the small class of appealable decisions -- carved out by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp, 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949) -- that "'finally determine claims of right separable from, and collateral to, rights asserted in the action.'" 922 F.2d at 1106 (quoting Mitchell, 472 U.S. at 527-29). The denial of a claim of qualified immunity premised upon state law, on the other hand, is appealable only if the state has conferred an underlying substantive immunity from suits arising from the performance of official duties. 922 F.2d at 1106-07. Because the New Jersey Tort Claims Act provides a government official with immunity ...

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