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. e du/thir dc ir c uit_1998/276Filed December 11, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3460

MARK ABBOTT, Appellant

v.

LAURIE J. LATSHAW, ALBERT DIEHL, DENNIS GEORGE,

ROBERT STAFFORD and DONALD SARSFIELD

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 96-803)

Argued Under Third Circuit LAR 34.1(a) June 11, 1998

Before: STAPLETON, COWEN, AND RENDELL, Circuit Judges

(Opinion Filed: December 11, 1998)

David J. Millstein (ARGUED) Jacquelyn A. Knupp Millstein & Knupp

P.O. Box 467 Youngwood, PA 15697-0467 Attorneys for AppellantChristopher K. McNally (ARGUED)

Murphy Taylor, P.C.
326 Third Avenue Pittsburgh, PA 15222 Attorney for Appellees, Dennis George, Robert Stafford
and Donald Sarsfield

John K. Greiner (ARGUED) Belden, Belden, Persin & Johnston
117 North Main Street Greensburg, PA 15601 Attorney for Appellee,
Albert Diehl

OPINION OF THE COURT

RENDELL, Circuit Judge:

On the evening of April 23, 1996, Laurie Latshaw telephoned Constable Albert Diehl and enlisted his aid in her plan to take a van from her former husband, Mar k Abbott, the next day. Although Latshaw recovered th e van, her plan was less than successful in that Abbott th en filed an action under 42 U.S.C. S 1983 against her, Diehl , and three Greensburg, Pennsylvania, police officers who arrived on the scene to assist the constable, for violation of his Fourteenth Amendment right to procedural due proces s. The district court granted summary judgment and dismissed Abbott's claim against all of the defenda nts, determining that the law enforcement officers were entitled to qualified immunity, and that both the pleadings and the evidence failed to implicate Latshaw in any state a ction. Abbott appeals the district court's dismissal of hi sS 1983 claim against all of the defendants, as well as its denial of his motion to add a claim alleging a violation of t he Fourth Amendment. We will affirm summary judgment in favor of
Officer Sarsfield and Officer Stafford of the Green sburg police department on qualified immunity grounds, bu t will reverse dismissal of Abbott's S 1983 claim against Diehl, Lieutenant George of the Greensburg police, and Lat shaw.

2We will also reverse the district court's denial of leave to

amend the complaint.

I. BACKGROUND

Mark Abbott and Laurie Latshaw were married from 19 83 until 1993. Latshaw's father, Dale Feather, purchas ed a van with "GMAC" financing in 1989, and received a Commonwealth of Pennsylvania certificate of title i ssued in his name. On November 18, 1991, Feather and Abbott signed a Bill of Sale in which Feather agreed to"gr ant[ ], sell[ ], convey[ ] and deliver[ ]" the van to Abbot t "free and clear of all liens and encumbrances . . . subject t o the Purchaser paying all of the loans and encumbrances levied against" it. Thereafter, Abbott and Latshaw used th e van, but its title and registration remained in Feather' s name.

Abbott retained sole possession of the van after he and Latshaw were divorced in 1993. He had completely pa id off the GMAC loan on February 25, 1994, but chose not t o transfer the van's title and registration to his ow n name because by doing so he would have forfeited the van 's nontransferable warranty.

On April 23, 1996, Feather assigned the van's title to his daughter by writing her name and address on the rev erse side of the Certificate of Title alongside his nota rized signature. The next day, Latshaw took the document to Greensburg where a title service reissued the van's registration in her name. She then telephoned Alber t Diehl, a Westmoreland County constable, and informed him"t hat [she had] the title to the car, it is signed over t o [her] and that [she] needed help in retrieving it from Mark A bbott." She expected the constable to "tell Mark that, yes, the [van] was [hers] and [she] could take it and that was it. " Latshaw admits that she contacted Diehl in his capacity as a constable. She also testified that she paid him for his
services.1

___________________________________________________ ______________

1. The transcript of Latshaw's deposition reads as follows:

Q. Now, when you contacted Al Diehl, you wer e cont acting him as a constable; is that correct?

3On April 25, 1996, Latshaw and Diehl met outside

Abbott's chiropractic office in Greensburg. Neither of them had notified Abbott of the impending seizure. As pr oof that she owned the van, Latshaw showed the constable the Pennsylvania certificate of title issued in her fat her's name and bearing a notarized assignment to her, a tempor ary registration issued in her name, temporary license plates, and an insurance card indicating that the van was i nsured by a policy issued to James P. Latshaw, presumably her

husband.

Convinced that Latshaw was entitled to immediate possession of the van, Diehl approached Abbott, ide ntified himself as a constable, and asked him if he would g ive Latshaw the keys to the van. Abbott refused. He ins isted that he had paid for the van, had driven it for sev en years, and had a bill of sale at home establishing that he owned
it. Abbott asked if he could drive the van home to get the proof of ownership, but Diehl threatened to arrest Abbott if he drove off in "her vehicle." Abbott then telephon ed David Harr, the attorney who had represented him in the s ale
transaction with Feather. Harr told Diehl that the bill of sale existed, and warned the constable that he woul d be held liable if he helped Latshaw take the van.

Shortly thereafter, Diehl telephoned the Greensburg police and requested that an officer come to the sc ene to
review Latshaw's documentation. Lieutenant Dennis George, Officer Robert Stafford, and Officer Donald Sarsfield of the Greensburg police arrived on the s cene in response to the call. They reviewed Latshaw's paper work and confirmed by radio that the van was in fact reg istered

___________________________________________________ ______________

A. Yes, I was.

Q. And did you pay him for his services?

A. Yes, I did.

Q. How much did you pay him?

A. $ 40.

(Latshaw Dep. at 13-14).

4to Dale Feather. One of them told Latshaw she was e ntitled

to immediate possession of the van.

David J. Millstein, Abbott's current counsel, arriv ed at the scene at about this time. He spoke briefly to D iehl, and
then entered into a heated discussion with Lt. Geor ge in which he vehemently opposed the seizure. When words proved ineffective, Millstein took action. By then, a locksmith whom Diehl had recommended to Latshaw had cut a key to the van. Millstein boxed the van into its parking space with his car in order to prevent Lats haw from driving it out of the parking lot. According to the police report submitted by Stafford, Lt. George then threa tened to arrest Millstein if he did not make way for the van . When Millstein refused to do so, Lt. George told him tha t he was under arrest. The Greensburg police officers then i ssued him a summary citation for disorderly conduct and b riefly detained him in a police car. Meanwhile, Latshaw ma naged
to maneuver the van around Millstein's car and drov e off.

Abbott commenced a 42 U.S.C. S 1983 action against Diehl, the Greensburg police officers, and Latshaw, claiming that they deprived him of property under c olor of state law without due process. The district court h ad jurisdiction pursuant to 28 U.S.C. SS 1331 and 1343 (a)(3), and 42 U.S.C. S 1983. Abbott now appeals from the J uly 21, 1997, final order of the district court grantin g summary judgment on qualified immunity grounds in favor of Diehl and the Greensburg police officers, dismissing hisS 1983 claim against Latshaw for lack of state action, and denying him leave to amend his complaint to include an alle ged
violation of the Fourth Amendment.

We have jurisdiction to review the final order of t he district court under 28 U.S.C. S 1291. In reviewing an order of summary judgment predicated on qualified immunit y grounds, we exercise plenary review over the distri ct court's legal conclusions. See Kornegay v. Cottingham , 120 F.3d 392, 395 (3d Cir. 1997). We will affirm summary jud gment if, after drawing all reasonable inferences from th e underlying facts in the light most favorable to the nonmoving party, we conclude that there is no genuine issue of material fact to be resolved at trial, and that the moving party is entitled to judgment as a matter of law. S ee id.

5II. DISCUSSION

The district court held that although Abbott assert ed a property interest upon which a S 1983 claim for vio lation of procedural due process may be predicated, qualified immunity shields the officers from potential liabil ity for their role in the seizure. We agree with the findin g that the
officers were state actors and effected a constitut ional deprivation, but part company with the district cou rt on the issue of qualified immunity.

A. 42 U.S.C. S 1983

Section 1983 provides a cause of action for violati ons of federally secured statutory or constitutional right s"under
color of state law." 42 U.S.C. S 1983. See West v. Atkins, 487 U.S. 42, 48 (1988). Abbott alleges in his S 198 3 claim that Constable Diehl and the Greensburg police offi cers violated his Fourteenth Amendment right to procedur al due process by using the authority vested in Pennsylvan ia law enforcement officers to deprive him of property wit hout prior notice and an opportunity to be heard. If the ir conduct satisfies the state action requirement of t he Due Process Clause, then it also qualifies as action"un der color of state law" for S 1983 purposes. See Lugar v. Edm ondson Oil Co., 457 U.S. 922, 935 n.18 (1982).

1. Constable Diehl and the Greensburg Police Office rs

Where, as here, defendants have successfully raised the shield of qualified immunity in a S 1983 action, an appellant trying to reverse summary judgment bears the initial burden of showing that the defendants viola ted a clearly established statutory or constitutional rig ht. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1 997) (citing In re City of Phila. Litig., 49 F.3d 945, 9 61 (3d Cir. 1995)). In particular, Abbott must establish that t he officers were acting as state actors when they deprived him of a property interest to which he had a legitimate clai m of entitlement without the process he deserved.

a. State Action

State action is a threshold issue in a Fourteenth Amendment claim. "[T]he deprivation must be caused by

6the exercise of some right or privilege created by the State

. . . or by a person for whom the state is responsi ble," and "the party charged with the deprivation must be a p erson who may fairly be said to be a state actor." Lugar, 457 U.S.
at 937. The traditional definition of action under color of state law is similar, and requires that one liable under S 1983 "have exercised power `possessed by virtue o f state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West, 4 87 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

We need not dwell on whether Diehl and the Greensbu rg police officers were state actors. They were clearl y invested with the power and authority of the state when they assisted Latshaw, and "state employment is generall y sufficient to render the defendant a state actor." Lugar, 457 U.S. at 935 n.18. In Pennsylvania, constables are e lected public officials with prescribed duties and liabili ties, see 13 Pa. Cons. Stat. Ann. SS 1, 41, 45 (1998), and we li kewise consider police officers to be a "set of state acto rs." Michigan v. Jackson, 475 U.S. 625, 634 (1986). Dieh l admits that he acted as a constable, and identified himself
as such to Abbott. The other officers arrived on th e scene in response to Diehl's call for assistance, and wer e on duty. All four law enforcement officers were clearly stat e actors.

b. Deprivation of a Constitutional Right

It is elementary that procedural due process is imp licated only where someone has claimed that there has been a taking or deprivation of a legally protected libert y or property interest. See Board of Regents v. Roth , 4 08 U.S. 564, 569 (1972). It is also well established that p ossessory interests in property invoke procedural due process protections. See Fuentes v. Shevin, 407 U.S. 67, 87 (1972). In Fuentes, the Supreme Court struck down as unconstitutional Florida and Pennsylvania prejudgme nt replevin procedures used by creditors to recover ho usehold goods purchased under conditional sales contracts a nd on which payments were allegedly overdue. "Clearly the ir possessory interest in the goods, dearly bought and protected by contract, was sufficient to invoke the

7protection of the Due Process Clause." Id. at 86-8 7 (footnote

omitted).2 It is equally clear that Abbott's posses sory interest in the van he had driven for seven years i nvoked the protection of the Due Process Clause.

At the core of procedural due process jurisprudence is the right to advance notice of significant deprivat ions of liberty or property and to a meaningful opportunity to be heard. See LaChance v. Erickson, ___ U.S. ___, 118 S. Ct. 753, 756 (1998); Boddie v. Connecticut, 401 U.S. 37 1, 379 (1971). Prior notice is not, however, absolutely ne cessary so long as other procedures guarantee protection again st erroneous or arbitrary seizures. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 605-606 (1974); Finberg v. Sulli van, 634 F.2d 50, 58 (3d Cir. 1980) (en banc). In Mitchell, the Court upheld a Louisiana statute requiring creditors to o btain judicial approval, post a bond, and submit a verifi ed petition or affidavit before they sequestered prope rty
without notice from debtors entitled to seek immedi ate dissolution of the writ or to regain possession of the sequestered goods by filing a bond. Comparable proc edures did not protect Abbott here. The Court has also fou nd prior notice unnecessary in rare cases where (1) a seizur e was directly necessary to secure an important governmen tal or general public interest, (2) there was a special ne ed for very prompt action, and (3) "the State has kept strict c ontrol over its monopoly of legitimate force: the person i nitiating the seizure has been a government official responsi ble for determining, under the standards of a narrowly draw n statute, that it was necessary and justified in a p articular instance." Fuentes, 407 U.S. at 91. This rare excep tion to the general requirement of providing notice before state action deprives an individual of a protected proper ty interest is also inapplicable here.

___________________________________________________ ______________

2. The defendants argue that Abbott had no property interest in the van because he did not list it among his assets in a pr ior bankruptcy proceeding, and is therefore judicially estopped fr om claiming he owns it. They also contend that his ownership of the van was uncertain because it was not explicitly awarded to him in the divorce proceedings. Because deprivation of a possessory interest alone invokes the right to procedural due process, we need not consider these arguments a s to who owned the

van.

8Abbott has a strong claim against Diehl for violati ng his

right to procedural due process by failing to give him advance notice and an opportunity to be heard prior to Latshaw's seizure of the van. The constable played a principal role in the seizure. Latshaw enlisted him , and paid for his help because she believed that she cou ld not take the van from Abbott without it. According to A bbott, "Mr. Diehl walked into my office and identified him self as a constable and told me that he was [there to take my vehicle," and that "we're going [to] take the vehic le one way

or another." The constable threatened to arrest Abb ott for driving "her vehicle" if he tried to drive the van home. Viewing the record in the light most favorable to A bbott, we find that a reasonable jury could conclude that Die hl used his public authority to help Latshaw take possessio n of the van, and as such was obligated to notify Abbott of the seizure in advance and to provide him with a meanin gful opportunity to be heard.

The Greensburg police officers were called to the s cene to check Latshaw's documentation, which they did. Ther e is
no evidence that two of the officers -- Sarsfield a nd Stafford -- did any more than this. The mere presence of pol ice at the scene of a private repossession does not, alone
, constitute state action causing a deprivation of a protected property interest. In Menchaca v. Chrysler Credit C orp., 613 F.2d 507 (5th Cir. 1980), the Fifth Circuit Court o f Appeals declined to find state action on the part of police officers who arrived at the scene of a self-help repossessio n in response to a report regarding a disturbance, maint ained the peace, but did not take sides or assist the pri vate repossessor in any way. Id. at 511-13. Officers Sar sfield
and Stafford confined their conduct to the routine police procedures of checking the vehicle registration, an d cannot be said to have used state action to deprive Abbott of his due process rights. See United States v. Coleman , 628 F.2d 961, 964 (6th Cir. 1980) (acquiescence by police do es not transform private acts into state action; police pr esence is not necessarily encouragement). However, Lieutenant George did not remain neutral, but advised Latshaw that she had a right to immediate possession of the van. Lt. George also ignored Millstein's ardent protest of the seizure, and threatened to arrest Millstein if he d id not

9move his car to make way for Latshaw. Although he w as

not the instigator, a jury could find that Lt. Geor ge, by his conduct, joined forces with Diehl in the unconstitu tional deprivation, going beyond the permissible conduct o utlined in Menchaca. See, e.g., Booker v. City of Atlanta, 776 F.2d 272, 274 (11th Cir. 1985) (plaintiff can withstand summary judgment if jury could find that police involvement constitutes intervention and aid). This affirmative
intervention and aid constitutes a sufficient basis for a reasonable trier of fact to find that Lt. George pl ayed a role in the seizure and resulting violation of Abbott's constitutional rights. Sarsfield and Stafford are t herefore entitled to dismissal of the claims against them, b ut Lt. George is implicated in the constitutional viol ation.

2. Laurie Latshaw

Although not an agent of the state, a private party who willfully participates in a joint conspiracy with s tate officials to deprive a person of a constitutional right acts" under color of state law" for purposes of S 1983. See Den nis v. Sparks, 449 U.S. 24, 27-28 (1980); Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970); McKeesport Hosp. v

. Accreditation Council for Graduate Med. Educ., 24 F .3d 519, 524 (3d Cir. 1994) ("State action may be found if t he private party has acted with the help of or in concert with state officials."). The district court dismissed Abbott's S 1983 claim against Latshaw sua sponte because it found t hat his complaint failed to allege a conspiracy between Lat shaw and Diehl, and that "the record reveal[ed] no basis to infer that any such allegation could withstand scrutiny." Abbott had alleged in his complaint that Diehl acted "at t he instance and request of Defendant Latshaw" and that Latshaw was thus "acting under color of state law" for purposes of the lawsuit. Further, the complaint dep icted joint action by Latshaw and Diehl in effectuating t he recovery of the van. This is not a case in which th e complaint contains conclusory allegations of concer ted action but is devoid of facts actually reflecting j oint action. See, e.g., Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998), cert. denied, 67 U.S.L.W. 3106, 3151 (U.S. O ct. 13, 1998) (No. 98-219). Rather, the complaint easily sa tisfied

10the standards of notice pleading; no more is requir ed of a

plaintiff in S 1983 cases. See Leatherman v. Tarran t County Narcotics Intelligence & Coordination Unit, 507 U.S . 163, 168-69 (1993). The district court's dismissal sua s ponte was improper because the pleading contained suffici ent allegations to withstand a motion to dismiss. Furth er, we find the court's conclusion that the record contain ed no facts which could support a conspiracy allegation t o have been premature -- since no motion for summary judgm ent had been filed -- but also curious in light of the facts borne out by the evidence, including Latshaw's statement under oath that she contacted Diehl and that she paid him to help her take possession of the van. (See Latshaw D ep. at 14). We will therefore reverse the district court's sua sponte dismissal of Abbott's S 1983 claim against Latshaw.

B. Qualified Immunity

Qualified immunity shields public officials perform ing discretionary functions from S 1983 and Fourteenth Amendment liability "insofar as their conduct does not violate clearly established statutory or constituti onal rights of which a reasonable person would have known." Har low v. Fitzgerald, 457 U.S. 800, 818 (1982). Our qualif ied immunity inquiry thus proceeds in two steps. See Sh arrar v. Felsing, 128 F.3d 810, 828 (3d Cir. 1997). First , we must determine whether the defendants violated "clearly established" rights. Second, we must decide whether , in light of the concrete, clearly established, and par ticular law applicable on April 25, 1996, and the information t hen available, a reasonable officer would have believed that the conduct of Diehl and/or the Greensburg police offic ers deprived Abbott of his right to procedural due proc ess. See Anderson v. Creighton, 483 U.S. 635, 640-41 (1987); Reitz v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997 ).

It is readily apparent that the applicable law rega rding procedural due process was "clearly established" at the time of the alleged violation of Abbott's rights. A s we noted earlier, the Supreme Court's 1972 decision in Fuent es held that due process protects possessory interests in p roperty. 407 U.S. at 87. Thus, the law in this area was clea r for at

11least twenty-four years prior to the incident invol ving

Abbott and the defendants.

However, resolution of the second element of the qu alified immunity test is more complex. The district court determined that an objectively reasonable officer i n the
same situation would not have realized that the def endants were violating Abbott's rights, and ruled that Dieh l and the Greensburg police officers were thus immune fromS 1 983 liability for helping Latshaw. The court held that an officer
who had reviewed Latshaw's documentation would reasonably have concluded that she was entitled to immediate possession of the van. Therefore, it foun d, Diehl and the Greensburg police officers could not have b elieved they were denying Abbott due process of law. We dis agree.

The district court and the defendants rely heavily on the fact that under Pennsylvania law certificates of ti tle represent "prima facie evidence of the facts appear ing on the certificate." 75 Pa. Cons. Stat. Ann. S 1106(c) (1998). However, the district court and the parties have ov erstated the importance of Latshaw's documentation, while ig noring the established precedent of Fuentes as well as the overall
context of the seizure.

At the heart of Fuentes is the principle that it is not for
law enforcement officers to decide who is entitled to possession of property. Rather, it is the domain of the courts, and citizens are to have a meaningful oppor tunity to be heard as to their rights before they are finally deprived of possession of property. Diehl's curbside courtro om, in which he decided who was entitled to possession, is precisely the situation and deprivation of rights t o be
avoided. Diehl knew that Abbott had once been marri ed to Latshaw and had been driving the van for seven year s. Moreover, he had reason to believe -- based on the statements of Abbott, Harr, and Millstein -- that A bbott had a bill of sale at home to support his ownership of the vehicle. In his single-minded reliance on Latshaw's documentation, Diehl rode roughshod over Fuentes a nd ignored the broader context of the seizure which mi litated against the legality and reasonableness of his hast y conclusion that Latshaw, not Abbott, was entitled t o immediate possession of the van. An official famili ar with

12the facts then known and the law then applicable wo uld

have reasonably believed that his conduct was viola ting clearly established law. As such, we conclude that the district court erred when it granted summary judgme nt in favor of Diehl on qualified immunity grounds.

We also conclude that an objectively reasonable off icer would have realized the illegality of Lt. George's conduct. Reasonable police officers should know from the established precedent of Fuentes that their role is not to be participants in property deprivations without notic e and an opportunity to be heard. There came a point during this incident when Lt. George's role changed from the pr otector of the peace to the enforcer. The Greensburg Police Department Supplemental Report indicates that Lt. G eorge told Millstein that he would be arrested if he did not move his van, and states that, when Millstein refused to cooperate, Lt. George "grabbed" him by the arm and "told [him] that he was under arrest." (App. at 541). In light of Fuentes, we believe that a reasonable officer in Lt . George's position would have known that such behavior crosse d the line of permissible conduct. We will thus reverse s ummary judgment on qualified immunity grounds as to Lt. Ge orge as well.

III. MOTION FOR LEAVE TO AMEND THE COMPLAINT

The district court denied Abbott leave to amend his complaint to include an alleged Fourth Amendment violation based on its findings that the defendants did not "seize" Abbott's van, and that a Fourth Amendment c laim "would be futile in light of the defendant officers ' right to qualified immunity under the circumstances." We rev iew
the district court's denial of leave to amend a com plaint for abuse of discretion. See Lewis v. Curtis, 671 F.2d 779, 783 (3d Cir. 1982). However, we also recognize that"[i] f a
district court concludes that an amendment is futil e based upon its erroneous view of the law, it abuses its d iscretion." R.M. Smith v. National Collegiate Athletic Ass'n, 1 39 F.3d 180, 190 (3d Cir. 1998). Here, we find fault with b oth of the district court's rationales, and we conclude that t he court abused its discretion in denying Abbott leave to am end.

13First, in light of the Supreme Court's expansive vi ew of

the concept of "seizure" under the Fourth Amendment , as set forth in Soldal v. Cook County, Ill., 506 U.S. 56, 61-65 (1992) (a Fourth Amendment "seizure" of property "o ccurs when `there is some meaningful interference with an individual's possessory interests in that property, ' " (citation omitted)), it is possible that plaintiff could in f act state a constitutional claim. Further, the district court's ruling as to qualified immunity, based as it is on the immuni ty issue relating to a due process violation, is not well-fo unded. The court opined that because qualified immunity applie d to Abbott's due process claim, it necessarily would ap ply to
his Fourth Amendment claim as well.3 Yet whether th e defendants are entitled to qualified immunity from a claim under the Fourteenth Amendment is a wholly differen t inquiry from whether the defendants are entitled to qualified immunity from a Fourth Amendment claim involving the seizure of personal property. The lat ter inquiry involves whether, in light of clearly established F ourth Amendment law applicable on April 25, 1996, a reaso nable officer in the position of Diehl and Lt. George wou ld have
believed that their conduct violated Abbott's Fourt h Amendment rights. This issue has not even been rais ed, let alone analyzed. Leave to amend the complaint should have been granted.

IV. CONCLUSION

For the foregoing reasons, we will affirm the distr ict court's order of summary judgment in favor of Offic ers Sarsfield and Stafford, but will reverse the grant of summary judgment as to Constable Diehl and Lt. Geor ge. We will also reverse the district court's dismissal of Abbott's S 1983 claim against Latshaw, and its denial of lea ve to amend the complaint, and we will remand to the dist rict court for further proceedings consistent with this opinion.

___________________________________________________ ______________

3. The district court made this determination witho ut the benefit of any briefing by the parties. In opposing Abbott's motio n for leave to amend, none of the defendants had argued that the amendmen t was futile because of the availability of a qualified immunity defense.

14A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

15