NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 4131

_____________ LORI ROTH, Administratrix of the Estate of Evan Michael Roth, Deceased

v. CITY OF HERMITAGE; BRIAN E. BLAIR, Hermitage Chief of Police;

ERI C JEWELL, Deputy Chief

- Investigations a/k/a Paul Eric Jewell; ADAM PICCIRILLO, Deputy Chief

- Operations; DETECTIVE TODD SAYLOR, DETECTIVE JOHN MILLER; CORPORAL DANIEL K. YOUNG ; OFFICE PHILLIP SCIARETTA; OFFICE CHAD NYCH; OFFICER CHRISTOPHER MORSE; J. BRADLEY MCGONIGLE, Mercer County Coroner &

Medical Examiner J. Bradley McGonigle, Mercer County Coroner & Medical Examiner,

Appellant

_______________ On Appeal from the United States District Court for the Western District of Penns ylvania (D.C. No. 2

- 16

- cv - 00 410) District Judge: Hon. Cathy Bissoon

_______________ Submitted Under Third Circuit LAR 34.1(a)

September 6, 2017 Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.

(Filed : September 8, 2017 )2 _______________ OP INION *

_______________
JORDAN, Circuit Judge This case involves allegation s of a complicated conspiracy , but the issue before us on appeal is relatively simple

– whether the District Court erred in failing to consider a qualified immunity defense before d ismissing the Plaintiff ’ s claims on the merits without prejudice

. We conclude there was error and therefore will vacate and remand

. I. B ACKGROUND Michael Roth was , tragically , found dead in a friend ’ s swimming pool after he
attended a party at the frien d ’ s home . Lori Roth, Michael ’ s mothe r and the administratr ix
of his e state , argues that police insufficiently investigated the circumstances of his death.
At the time of Michael ’ s death, Appellant J. Bradley McGonigle was the Mercer County
Coroner and M e dical E xaminer

. He directed Dr. Eric Vey to conduct an autopsy on Michael . The autopsy results were “ consistent with drowning ” and suggested that
Michael “ sustained a neck fracture ” before drowning. (App. at 9.) After Dr. Vey issued his report , which s aid that the drowning occurred as a result of a “ mishap, ” McGon igle did not conduct a further inquest into how or when Michael died, as Roth claims he was required to do. (App. at 9

- 10 .)

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.3

Roth filed this lawsuit against the City of Hermitage , several H er mitage police
officers , and other city officials ( collectively the “ City Defendants ” ) , a s well as against McGonigle. She claims , as summarized by the District Court, that the lack of an adequate investigation violated “ her federal constitutional right of access to the courts ”
and “ deprived [her] of the opportunity to seek meaningful judicial redress for her son ’ s death in the form of a state

- court wrongful death action. ” (App. at 10.) And yet Roth litigated to a successful conclusion a wrongful death act ion again st the family that hosted
the ill

- fated pool party, obtain ing a more than $100,000 settlement

. She is also pursuing a second wrongful death action against 21 individuals who were present at the party that night

. In this case, the City Defendan ts and McGonigle filed separate m otions to dismiss. McGonigle argued that Roth fail ed to state a claim against him and also that he was entitled to qualified immunity. The District Court granted the motions to dismiss, concluding that Roth had not stated a cogn izable denial of access to the courts c laim
because she had not alleged that there was an effort to cov er - up or conceal information. Despite that conclusion, the Court also stated that , “ to the extent that [Roth] claims that she cannot meaningfully litigate her pending state court action, that claim is premature. ” (App. at 16.) So the Court granted dismissal without prejudice and stayed the action

“ pending the resolution of [Roth ’ s] state court action

. ” (App. at 17.) Specifically with regard to the claims against McGonigle, the District Court noted that the claim s would be dismissed without prejudice because “ there is no allegation that Defendant McGonigle (or any other Defendant) engaged in active concealment or destruction of evidence that4

coul d give rise to a viable denial of access to the courts claim. ” (App. at 20.) The
District Co urt was silent with regard to Mc Gonigle ’ s qualified immunity defense

. McGonigle filed this timely appeal , arguing that the District Court erred by failing

to co nsider his request for qualified immunity.
II. D ISCUSSION 1 We asked the parties to brief whether we have jurisdiction despite the District
Court ’ s entry of a stay. We conclude that we do have jurisdiction and that the District Court erred by not consid ering McGonigle ’ s qualified immunity defense.
An officer ’ s entitlement to dismissal on the basis of qualified immunity is not merely based on “ the individual ’ s desire to avoid the personal costs and aggravations of presenting a defense. ” In re Montgomery Cty. , 215 F.3d 367, 374 (3d Cir. 2000)

. Instead, “ the right not to stand trial is based on far broader concerns for avoiding the social costs of the underlying litigation, and for ensuring and preserving the effectiveness of government

. ” Id

. at 374

- 75

. Accordingly, an order implicating a qualified immunity defense, even implicitly , can be appealable. Id. at 374 (holding that “ we have interlocutory jurisdiction to review an implie d denial ” of qualified immunity )

. In this case, the District Court effec tively (if temporarily) denied qualified immunity because it ruled that additional factual development was needed in state court before the Court could fully resolve the merits of Roth ’ s claim. Therefore, by implication it concluded that qualified immunit y could not be granted on the current record, and that decision was immediately appealable under the collateral order doctrine. George v.

1 The District Court had jurisdiction under 28 U.S.C. § 1331.5

Rehiel , 738 F.3d 562, 571 (3d Cir. 2013). That is true even though the District Court ’ s stay order does not immediat ely subject McGonigle to “ the personal costs and aggravations of presenting a defense

. ” In r e Montgomery Cty. , 215 F.3d at 374 . The
order still subjects him to the continu ed threat of future litigation

. Accordingly, we have jurisdiction. 2
T he District Court was required to rule on the qualified immunity defense before dismissing without prejudice and granting a s tay. W e have emphasized that “ a district court must avail itself of the procedures available under the Federal Rules to facilitate an early r esolution of the qualified immunity issue. ” Thomas v. Indep. Twp. , 463 F.3d 285, 300 (3d Cir. 2006). Or , in other words , “ the trial court must exercise its discretion in a
way that protects the substance of the qualified immunity defense ... so that offi cials are not subjected to unnecessary and burdensome discovery or trial proceedings. ” Id. ( alteration in original) ( quoting Crawford

- El v. Britton , 523 U.S. 574, 597

- 98 (1998) ).
Because the District Court did not consider qualified immunity, McGonigle d id not
benefit from “ the substance of the qualified immunity defense, ” id. (quoting Crawford

El , 523 U.S. at 597), and remains potentially liable in a future suit.

2 Roth argues that the st ay order is not appealable since it was a procedural stay and did not “require all or an essential part of the federal suit to be litigated in a state forum.” Schall v. Joyce , 885 F.2d 101, 105 (3d Cir. 1989) ( quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 10 n.11 (1983)). But McGonigle is not challenging the decision to issue a stay itself; he is challenging the decision to enter a stay without first considering the question of qualified immunity. And the implicit denial of qual ified immunity is immediately appealable , even if the decision to enter a stay is not

.6

Failing to consider the qualified immunity defense before dismissing without prejudice on the merits wa s error because the District Court failed to resolve a “ motion asserting qualified immunity ... at th e earliest possible stage in the litigation

. ” Id. at 302 ;

see also James v. City of Wilkes

- Barre , 700 F.3d 675, 679 (3d Cir. 2012) ( recognizing
tha t we had previously remanded a case to the district court “ for an explanation as to why it denied qualified immunity ” when the court rejected a motion to dismiss without discussing qualified immunity ). Accordingly, we will remand to allow the District Court

to consider whether the claims against McGonigle should be dismissed with prejudice on the basis of qualified immunity.
III . C ONCLUSION For the foregoing reasons , we will vacate the order of dismissal and re mand to allow the District Court to consi der McGonigle ’ s qualified immunity defense.