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w . v i l l a no v a . e du/thir dc ir c uit_2014/260NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 13

- 1738

____________
JOSEPH CONSONERY, JR.

v. WARDEN JOSEPH W.PELZER; SENIOR CAPTAIN ED WARD STRAWN;

CAPTAIN MICHAEL KING; OFFICER CHRIS CAIN; OFFICER JOHN STAPELTON: DISTRICT ATTORNEY STEVEN M. TOPRANI; JOHN TEAMUS, DEPUTY WARDEN; NURSE ESTHER; WASHINGTON COUNTY, Appellant s

____________ 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 Judge s
. (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 rea sons 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 a re necessary to our disposition

. On February 6, 2009, plai ntiff 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. S hortly thereafter, Consonery’s tooth ―snapped,‖ causing severe pain and bleeding. Consonery complained orally and in writing to the defendants. M edical 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 o r 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 . Mea nwhile, t he defendants
refused to provi de Consonery treatment at WCCF, and, w ith the exception of a single course of antibiotics, his tooth remained untreated

. On June 5, 2009, Consonery was placed in to the custody of the Pennsylvania Department of Correc tions. 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 a nd seven WCCF officials , alleging that the defendants acted
with deliberate indifference t o 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 we re 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 hi s 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.
T his 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 de nying 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 w e do not have jurisdict ion 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 exten t 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 except ion to the general rule applies for ce rtain 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 ‖ th at are immed iately 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 jud gment 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 ass erted 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 , be cause 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.
W e have held that ―denial of qualif ied 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 i ssue 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 m ay 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 fact s alleged, taken in the light most favorable to the plaintiff, show the officer’s conduct violated a constitutional6

right‖; and (2) ―whether the right was clearly established.‖ Consonery v. Pelzer , 2013
WL 593982 , at *7 (W.D. Pa. Feb. 15, 2013) . With reg ard 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, a nd dismiss the remainder of this appeal for lack of jurisdiction

. I II

. 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 righ t.‖ Anderson v. Creighton , 483 U.S. 635, 640 (1987). As w e 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 medical7

needs

. 3 Se e, e. g., Atkinson v. Taylor , 31 6 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 Co nsonery was incarcerated at WCCF. Indeed, t he defendants even note in
their brief to this Court that Estelle sets forth the applicable standard for Consonery’s
claims. See Defendant s’ Br. 10. Hence, t he District Court did not err in finding that
Estell e 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 th e appeal for l ack 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 sufficient ly harmful to evidence deliberate indifference to serious medical needs.‖ 429 U.S. at 106.