2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-6-2014

Joseph Consonery, Jr. v. Joseph Pelzer

Precedential or Non-Precedential: Non-Precedential

Docket 13-1738

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Recommended Citation

"Joseph Consonery, Jr. v. Joseph Pelzer" (2014). 2014 Decisions. Paper 260.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-1738

____________

JOSEPH CONSONERY, JR.

 

v.

WARDEN JOSEPH W.PELZER; SENIOR CAPTAIN EDWARD STRAWN; 

CAPTAIN MICHAEL KING; 

OFFICER CHRIS CAIN; OFFICER JOHN STAPELTON: 

DISTRICT ATTORNEY STEVEN M. TOPRANI; JOHN TEAMUS, 

DEPUTY WARDEN; NURSE ESTHER; WASHINGTON COUNTY,

Appellants

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 2-09-cv-01510)

District Judge: Hon. Maureen P. Kelly

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 10, 2013

Before: MCKEE, Chief Judge, FUENTES, and CHAGARES, Circuit Judges.

(Filed: March 7, 2014)

____________

OPINION

____________

CHAGARES, Circuit Judge.
2

Seven defendants appeal from the District Court’s partial denial of their motion for 

summary judgment. For the reasons that follow, we will affirm the District Court’s 

decision in part and dismiss the remainder of the appeal for lack of jurisdiction.

I.

We write primarily for the benefit of the parties, and therefore confine our 

discussion to the facts that are necessary to our disposition. On February 6, 2009, 

plaintiff Joseph Consonery was incarcerated at the Washington County Correctional 

Facility (―WCCF‖). Upon his arrival, Consonery informed a WCCF nurse that he had an 

infected tooth and needed to see a dentist. Shortly thereafter, Consonery’s tooth 

―snapped,‖ causing severe pain and bleeding. Consonery complained orally and in 

writing to the defendants. Medical and dental professionals at WCCF examined 

Consonery and determined that he should be evaluated for extraction of the tooth by an 

outside oral surgeon. WCCF officials informed Consonery that he would have to make 

arrangements for further treatment through a furlough.1

 

1

Pennsylvania law provides for furloughs, which result in a temporary release from 

custody, as follows:

(a) Generally.—Notwithstanding any provision of law, if any offender has been 

sentenced to undergo imprisonment in a county jail for a term of less than five 

years, the court, at the time of sentence or at any time thereafter upon application 

made in accordance with this section, may enter an order making the offender 

eligible to leave the jail during necessary and reasonable hours for the purpose of 

working at his employment, conducting his own business or other self-employed 

occupation, including housekeeping and attending to the needs of family, seeking 

employment, attending an educational institution, securing medical treatment or 

for other lawful purposes as the court shall consider necessary and appropriate.
3

Although Consonery made attempts to schedule an appointment with an outside 

oral surgeon through a furlough, he was unsuccessful. Meanwhile, the defendants

refused to provide Consonery treatment at WCCF, and, with the exception of a single 

course of antibiotics, his tooth remained untreated. On June 5, 2009, Consonery was 

placed into the custody of the Pennsylvania Department of Corrections. On June 11, 

2009, he was transferred to the State Correctional Institute at Camp Hill, where he 

received the required dental treatment. 

Consonery brought this action in the District Court, pursuant to 42 U.S.C. § 1983,

against Washington County and seven WCCF officials, alleging that the defendants acted 

with deliberate indifference to his serious medical condition in violation of his rights 

under the Eighth and Fourteenth Amendments of the United States Constitution. The 

defendants then filed a motion for summary judgment, arguing, inter alia, that the 

individual WCCF officials were entitled to qualified immunity. The District Court 

granted summary judgment with regard to Consonery’s claims for punitive damages as to 

Washington County, all of his claims as to defendant District Attorney Steven M. 

Toprani, and his retaliation claim as to all of the defendants. The Court denied the 

defendants’ motion for summary judgment in all other respects, because it concluded that 

there remain genuine issues of material fact to be resolved by a jury. 

Defendants Warden Joseph W. Pelzer, Senior Captain Edward Strawn, Captain 

Michael King, Officer Chris Cain, Officer John Stapleton, Deputy Warden John Temas, 

 

42 Pa. C.S. § 9813(a).
4

Nurse Jane Esther, and Washington County now appeal all claims for which the District 

Court denied summary judgment. 

II.

This appeal comes to us before the District Court has entered a final judgment in 

the case, so we will begin with the issue of appellate jurisdiction. As a general rule, we 

only have jurisdiction over ―final decisions‖ of the district courts. See 28 U.S.C. § 1291. 

―[I]nterlocutory appeals – appeals before the end of district court proceedings – are the 

exception, not the rule.‖ Johnson v. Jones, 515 U.S. 304, 309 (1995). Rulings denying 

summary judgment are ―by their terms interlocutory‖ and not appealable under § 1291. 

Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976); see also Ziccardi v. City of 

Phila., 288 F.3d 57, 61 (3d Cir. 2002) (noting that we do not have jurisdiction to hear ―an 

appeal from an order denying a motion for summary judgment if the issue raised is 

whether or not the evidence in the pretrial record [is] sufficient to show a genuine issue of 

fact for trial‖ (quotation marks omitted)).

2

 Thus, to the extent that the defendants in the 

present case ask us to review whether the evidence in the pretrial record is sufficient to 

show genuine issues of fact for trial, we do not have jurisdiction over their appeal. 

An exception to the general rule applies for certain denials of qualified immunity.

See Mitchell v. Forsyth, 472 U.S. 511 (1985). This exception arises under the collateral 

order doctrine, which provides that certain ―collateral orders,‖ entered before a case has 

ended, amount to ―final decisions‖ that are immediately appealable under § 1291. Cohen 

 

2

Summary judgment must be denied when a district court determines that a ―genuine 

dispute as to [a] material fact‖ precludes immediate entry of judgment as a matter of law. 

Fed. R. Civ. P. 56(a). 
5

v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). Such orders fall within 

the ―small class [of decisions] which finally determine claims of right separable from, 

and collateral to, rights asserted in the action, too important to be denied review and too 

independent of the cause itself to require that appellate consideration be deferred until the 

whole case is adjudicated.‖ Id. Qualified immunity shields officials from suit if their 

conduct ―d[id] not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.‖ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

A district court’s denial of qualified immunity may constitute a collateral order, because 

immunity ―is effectively lost if a case is erroneously permitted to go to trial,‖ and the 

district court’s determination is ―effectively unreviewable on appeal from a final 

judgment.‖ Mitchell, 472 U.S. at 526.

We have held that ―denial of qualified immunity falls within the collateral-order 

doctrine only to the extent the denial turns on an issue of law.‖ In re Montgomery Cnty.,

215 F.3d 367, 373 (3d Cir. 2000); see also Doe v. Groody, 361 F.3d 232, 237 (3d Cir.

2004). Generally, the relevant issue of law is whether the right that the defendant is 

alleged to have violated was ―clearly established‖ at the time the defendant acted. See

Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Where the denial turns on the sufficiency 

of the evidence, it may not be appealed until the district court enters final judgment in the 

case. See Johnson, 515 U.S. at 313.

In denying the defendants’ assertion of qualified immunity, the District Court

correctly applied a twofold inquiry, asking whether: (1) ―the facts alleged, taken in the 

light most favorable to the plaintiff, show the officer’s conduct violated a constitutional 
6

right‖; and (2) ―whether the right was clearly established.‖ Consonery v. Pelzer, 2013 

WL 593982, at *7 (W.D. Pa. Feb. 15, 2013). With regard to the first prong, the District 

Court held that, ―the record . . . raises a genuine issue of material fact as to whether each 

Defendant was aware of Plaintiff’s need for treatment for a condition causing severe 

chronic pain and yet stood idly by.‖ Id. We do not have jurisdiction to consider this 

holding, because it turns on issues of fact. Considering the second prong, the District 

Court found that ―the law with regard to a constitutional obligation to provide care to 

inmates suffering unnecessary pain from a serious medical need has been clear since at 

least 1976, when the United States Supreme Court decided Estelle v. Gamble, 429 U.S. 

97, 104 (1976).‖ Id. This finding constitutes the only legal issue decided by the District 

Court, and therefore it is the only issue raised in this appeal that we can consider.

Accordingly, we will consider whether ―the legal norms allegedly violated by the 

defendant[s] were clearly established at the time of the challenged actions,‖ Mitchell,

472 U.S. at 527–28, and dismiss the remainder of this appeal for lack of jurisdiction.

III.

To be clearly established, ―[t]he contours of the [constitutional] right must be 

sufficiently clear that a reasonable official would understand that what he is doing 

violates that right.‖ Anderson v. Creighton, 483 U.S. 635, 640 (1987). As we have 

explained repeatedly, the Supreme Court, in Estelle v. Gamble, 429 U.S. 97 (1976), set 

forth the framework for analyzing claims of deliberate indifference to serious medical 
7

needs.

3

 See, e.g., Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003); Reynolds v. 

Wagner, 128 F.3d 166, 172 (3d Cir. 1997); Monmouth Cnty. Corr. Institutional Inmates 

v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). This standard was clearly established in 

2009, when Consonery was incarcerated at WCCF. Indeed, the defendants even note in 

their brief to this Court that Estelle sets forth the applicable standard for Consonery’s

claims. See Defendants’ Br. 10. Hence, the District Court did not err in finding that 

Estelle was clearly established law when Consonery was incarcerated at WCCF, and we 

will affirm the Court’s legal conclusion.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court in part 

and dismiss the remainder of the appeal for lack of jurisdiction.

 

3

In Estelle, the Supreme Court held that, in order to state a cognizable claim for cruel 

and unusual punishment based on the denial of medical care, ―a prisoner must allege acts 

or omissions sufficiently harmful to evidence deliberate indifference to serious medical 

needs.‖ 429 U.S. at 106.