Joseph Consonery, Jr v. Warden Joseph W.pelzer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1738
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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
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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)
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OPINION
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CHAGARES, Circuit Judge.

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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.

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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).

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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).

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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

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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

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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.

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