Keith A. Rosenberg v. Michael John Vangelo, Officer, Individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2176
KEITH A. ROSENBERG
v.
MICHAEL JOHN VANGELO, OFFICER, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS A MEMBER OF THE EASTON POLICE
DEPARTMENT; DOUGLAS S. SCHLEGEL, CAPTAIN, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE EASTON
POLICE DEPARTMENT; LAWRENCE R. PALMER, CHIEF,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE
EASTON POLICE DEPARTMENT; THOMAS F. GOLDSMITH, MAYOR,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF THE
CITY OF EASTON; THE CITY OF EASTON,
Appellants
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-02514)
District Judge: Honorable Robert F. Kelly
Argued June 30, 2003
Before: SLOVITER, AMBRO and BECKER, Circuit Judges
(Opinion filed: March 12, 2004)

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Andrea L. Bennett, Esquire
Devlin & Devine
100 West Elm Street, Suite 200
Conshohocken, PA 19428
David J. MacMain, Esquire (Argued)
Montgomery, McCracken, Walker & Rhoads
123 South Broad Street
Philadelphia, PA 19109
Attorneys for Appellant
John P. Karoly, Jr. (Argued)
Law Offices of John Karoly
1555 North 18th Street
Allentown, PA 18104
Attorney for Appellee
OPINION OF THE COURT
AM BRO, Circuit Judge
Following an incident in which he was injured by a police dog, Keith Rosenberg
alleged multiple causes of action against a number of defendants, including the canine
officer’s supervisors. The supervisor defendants moved for summary judgment, arguing
that Rosenberg cannot prove supervisory liability and, if he can do so, they are entitled to
qualified immunity. The District Court denied their motion, and they have appealed. For
the reasons that follow, we dismiss the appeal pertaining to supervisory liability for lack
of appellate jurisdiction and affirm the District Court’s denial of the request for qualified

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immunity.
I. Factual & Procedural Background
On March 6, 1999, police officers in Easton, Pennsylvania, spotted and pursued an
allegedly stolen vehicle in which Rosenberg was a passenger. Canine Officer Michael
John Vangelo learned of the chase via radio and attempted to assist. The suspects’ car
stopped and its occupants fled on foot. Rosenberg ultimately ran into a dead-end alley.
The parties dispute the events that followed. According to Rosenberg, once he
realized he had no escape, he dropped to his knees and placed his hands above his head.
One of the pursuing officers arrived, pushed Rosenberg to the ground face first and
handcuffed his wrists behind his back. Rosenberg alleges that at this time, after he
already was restrained, Vangelo arrived on the scene and allowed his canine partner to
bite Rosenberg. He also claims Vangelo’s actions deviated from defined police
procedures, and this was merely the latest in a series of similar instances of abuse
involving Easton officers and their canines.
According to Vangelo, he first observed Rosenberg beginning to run from the
stolen vehicle. Vangelo claims he exited his car and three times commanded Rosenberg
to stop. When Rosenberg did not comply, Vangelo released his canine and instructed it to
apprehend the suspect. The canine pursued Rosenberg into the alley, bit him in the left
shoulder, brought him to the ground and held him there until the trailing officers caught
up. At this point Vangelo ordered the dog off Rosenberg, who was then handcuffed and

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taken into custody. Rosenberg sustained puncture wounds to his left shoulder from the
dog bite and cuts to his left eye area.
Rosenberg filed suit in Pennsylvania state court against Vangelo; Douglas D.
Schlegel, a Captain of the Easton Police Department; Lawrence R. Palmer, Chief of the
Easton Police Department; and Thomas F. Goldsmith, Mayor of Easton (collectively, the
“Supervisor Defendants”); and the City of Easton. Rosenberg’s complaint alleged five
causes of action: civil rights violations pursuant to 42 U.S.C. § 1983 against all
defendants (Count I); intentional infliction of emotional distress against all defendants
(Count II); assault and battery against Vangelo (Count III); negligent infliction of
emotional distress against all defendants (Count IV); and negligence against all
defendants (Count V).
The defendants removed the case to the United States District Court for the
Eastern District of Pennsylvania and filed a motion under Fed. R. Civ. P. 12(b)(6) to
dismiss Count II as to the City of Easton and Count IV as to all defendants. The District
Court dismissed only the intentional infliction of emotional distress claim (Count IV)
against the City.
The Supervisor Defendants then moved for summary judgment on Count I –
arguing Rosenberg cannot establish supervisory liability or, assuming otherwise, they are
entitled to qualified immunity – and all defendants moved for summary judgment on
Counts II and IV. The District Court granted the motion as to Count II (intentional

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infliction of emotional distress), but denied it as to all other counts. Rosenberg v.
Vangelo, No. 01-2514, 2002 WL 576109 (E.D. Pa. Apr. 18, 2002).
The Supervisor Defendants timely appealed the District Court’s denial of summary
judgment on Count I. Thus, the only appellants before us are the Supervisor Defendants
and the only issue is whether they are liable for Rosenberg’s claim under § 1983.
II. Analysis
At the outset we note that the parties have made little effort to establish the
propriety of jurisdiction in our Court. The Supervisor Defendants’ statement of
jurisdiction, in its entirety, is as follows: “The United States Court of Appeals for the
Third Circuit has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, under the
collateral order doctrine.” Appellants’ Br. at 1 (citing Pro v. Donatucci, 81 F.3d 1283,
1285 (3d Cir. 1996); Mellott v. Heemer, 161 F.3d 117, 121 (3d Cir. 1998)). Rosenberg’s
brief merely repeats the same statement and citations. Appellee’s Br. at 1. Although all
parties may agree the collateral order doctrine applies, “we have an ‘independent
obligation to examine our own jurisdiction sua sponte.’” In re Flat Glass Antitrust Litig.,
288 F.3d 83, 88 (3d Cir. 2002) (quoting In re Ford Motor Co., 110 F.3d 954, 958-59 (3d
Cir. 1997)).
The Supervisor Defendants offer two general arguments on appeal: (1) they are
entitled to judgment as a matter of law because their acts or omissions do not rise to the
level required to impose supervisory liability for the alleged acts of Vangelo; and (2) even

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assuming supervisory liability can be established, summary judgment should be granted in
their favor because they enjoy qualified immunity.
A. Supervisory Liability
Our analysis of whether we have jurisdiction to consider the Supervisor
Defendants’ first argument – that the District Court erred in denying their motion for
summary judgment on Rosenberg’s claim for supervisory liability under § 1983 – is
relatively straightforward. The District Court found that genuine issues of material fact
existed in regard to (1) the Supervisor Defendants’ knowledge of past incidents involving
dog attacks and (2) their failure to correct the problem through effective training or
discipline. Rosenberg, 2002 WL 576109 at *2-3. On appeal, the Supervisor Defendants
argue that Rosenberg failed to present evidence of a sufficient causal connection between
his injuries and their actions or inaction. We lack jurisdiction to consider this argument,
however, because the District Court’s denial of summary judgment is not an appealable
collateral order.
Under 28 U.S.C. § 1291, we are authorized to hear appeals of “final decisions” of
district courts. The denial of a motion for summary judgment, permitting an issue to go to
trial, generally is not considered a final order. Hamilton v. Leavy, 322 F.3d 776, 781-82
(3d Cir. 2003); Eddy v. Virgin Islands Water & Power Auth., 256 F.3d 204, 208 (3d Cir.
2001). But some collateral orders operate as final decisions and thus are immediately
reviewable. Eddy, 256 F.3d at 208. To establish appellate jurisdiction under this

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principle (known as the collateral order doctrine), an appellant must demonstrate a district
court’s ruling (1) conclusively determined a disputed question, (2) resolved an important
issue completely separate from the merits of the action, and (3) is effectively
unreviewable on appeal from a final judgment. Hamilton, 322 F.3d at 782; Eddy, 256
F.3d at 208; see also Johnson v. Jones, 515 U.S. 304, 310 (1995); Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949).
The Supervisor Defendants’ argument fails to satisfy any of the collateral order
doctrine’s requirements. The District Court did not conclusively rule on the issue, which
is completely intertwined with, not separate from, the merits of the underlying action.
And the claim is reviewable on appeal. As we have recognized, “the collateral order
doctrine does not permit 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.’” Ziccardi v. City of Phila., 288 F.3d
57, 60 (3d Cir. 2002) (quoting Johnson, 515 U.S. at 307).
B. Qualified Immunity
Our analysis of the Supervisor Defendants’ second argument on appeal – that they
are entitled to qualified immunity from Rosenberg’s suit – is more complex.
Unfortunately, this stems largely from the Supervisor Defendants’ incomplete
understanding of both the collateral order doctrine and qualified immunity. After
discussing the relevant legal standards, we address each argument made by the Supervisor

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1 We acknowledge that qualified immunity is an abstract and difficult doctrine. In this
regard, the “clearly established” and “objectively reasonable” standards are sometimes
discussed as two characterizations of the same inquiry, but sometimes they appear to be
two completely distinct inquiries. See Gruenke, 225 F.3d at 299.
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Defendants, as we understand them, in turn.
1. Relevant Legal Standards
A pretrial order rejecting a motion for summary judgment based on a qualified
immunity defense has been recognized by the Supreme Court as properly reviewable on
interlocutory appeal. Eddy, 256 F.3d at 208 (citing Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)). A “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 County, 215 F.3d 367,
373 (3d Cir. 2000) (citing Johnson, 515 U.S. at 313). If we do have jurisdiction, our
review of an order rejecting qualified immunity is plenary. Eddy, 256 F.3d at 208.
The qualified immunity analysis involves a multi-part inquiry. First, a plaintiff’s
allegations must sufficiently establish the violation of a constitutional right. Saucier v.
Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)).
Second, the right allegedly violated must be clearly established such that a reasonable
person would have been aware of it. Id. at 201-02 (citing Anderson v. Creighton, 483
U.S. 635, 640 (1987)). In this regard, a court must determine whether the defendant’s
actions were objectively reasonable under current federal law. Gruenke v. Seip, 225 F.3d
290, 298-99 (3d Cir. 2000).1 The burden is on the Supervisor Defendants, however, to
establish that they are entitled to qualified immunity. Beers-Capitol v. Whetzel, 256 F.3d

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2 As to whether Rosenberg has alleged the violation of a constitutional right, the
Supervisor Defendants are making the wrong argument. As Judge Becker noted at oral
argument, the issue of supervisory qualified immunity is whether the plaintiff was entitled
to be free from being bitten by a canine controlled by a police officer who was being
supervised by a deliberately indifferent supervisor. The threshold question is not whether
the plaintiff has alleged a causal connection between his/her injuries and the supervisors’
alleged failure to train, it is do the facts alleged show the supervisors’ conduct violated
the plaintiff’s right under the Fourth and Eighth Amendments to the Constitution not to be
attacked by a police dog.
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120, 142 n.15 (3d Cir. 2001) (citation omitted).
2. Violation of a Constitutional Right
The Supervisor Defendants first claim that Rosenberg has failed to allege the
violation of a constitutional right. They do not, however, make any legal arguments.
Instead, the Supervisor Defendants merely reference their previous discussion that
Rosenberg has failed to allege facts sufficient to establish supervisory liability.2 The
difficulty with the argument of the Supervisor Defendants is that the facts in this case are
disputed, and we are unwilling to hold as a matter of law that Rosenberg cannot establish
supervisory liability should the facts be as he alleges.
Similarly, the Supervisor Defendants argue a reasonable supervisor could have
believed that his conduct comported with established legal standards. In other words, a
reasonable supervisor could have believed “he was not being deliberately indifferent to
the existence of an excessive risk to plaintiff of an intentional dog bite.” Appellant’s
Brief at 20. This argument at least appears to be relevant to the qualified immunity
inquiry. But once again, it is an argument that posits disputed facts, precisely why we

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have trials.
3. Challenging the “Deliberate Indifference” Standard
Finally, the Supervisor Defendants argue that, even assuming Rosenberg proves a
violation of a constitutional right, this right was not clearly established. Specifically, they
allege that the District Court’s conclusion – that only deliberate indifference, and not
direct and active involvement, is necessary to establish supervisory liability, Rosenberg,
2002 WL 576109 at *3 – does not reflect clearly established law. Citing Brown v.
Grabowski, 922 F.2d 1097, 1119 (3d Cir. 1990), the Supervisor Defendants claim that
supervisory liability requires a supervisor’s “direct and active involvement” in the
subordinate’s constitutional violation. Further, this standard was recently cited with
approval in a not precedential opinion of our Court. See Ricker v. Weston, 27 Fed. App.
113, 119 (3d Cir. 2002). Therefore, the Supervisor Defendants claim the proper standard
remains unclear.
This argument misses the mark because it is Rosenberg’s right that must be clearly
established (or shown not to be clearly established by the Supervisor Defendants), not the
standard to impose supervisory liability. To the extent the Supervisor Defendants fail to
address the issue, therefore, their claim for qualified immunity fails ipso facto. Beers-
Capitol, 256 F.3d at 142 n.15.
Giving the Supervisor Defendants the benefit of the doubt, however, one could
construe their argument as addressing qualified immunity. “[I]t is not sufficient that the

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right at issue be clearly established as a general matter. Rather, the question is whether a
reasonable public official would know that his or her specific conduct violated clearly
established rights.” Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (citing
Anderson v. Creighton, 483 U.S. 635, 636-37 (1987)). One could argue that if
supervisory liability does not attach until the Supervisor Defendants directly and actively
caused the harm suffered by Rosenberg, and if there is no evidence that they were directly
and actively involved, then reasonable persons in their positions would not have known
their conduct was violating a clearly established right. To the extent this argument turns
on an issue of law, we have jurisdiction to consider it under the collateral order doctrine.
In re Montgomery County, 215 F.3d at 373 (citing Johnson, 515 U.S. at 313).
But even if the argument favors jurisdiction, the Supervisor Defendants are not
entitled to qualified immunity. Their reliance on Grabowski and Ricker is misplaced for
several reasons. Ricker is a not-precedential opinion, and we are not bound to follow it.
Also, Grabowski addresses a unique factual situation. Although the case was decided in
1990, its events occurred in 1985. In discussing qualified immunity in the context of
supervisory liability, Grabowski noted that the district court failed to consider relevant
precedent at the time the events in that case occurred. 922 F.2d at 1119-20. Direct and
active involvement was required to establish supervisory liability in 1985 – see Rizzo v.
Goode, 423 U.S. 362, 377 (1976); Pennsylvania v. Porter, 659 F.2d, 306, 336 (3d Cir.
1981) – and Grabowski held qualified immunity was called for because no evidence

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existed of the defendants’ direct and active involvement. Grabowski, 922 F.2d at 1119-
20.
We were careful to recognize, however, that direct and active involvement was no
longer the applicable legal standard in 1990 when Grabowski was decided. Id. at 1120
n.16. For in 1989 the Supreme Court concluded that a municipality’s failure to train
police officers may give rise to § 1983 liability “where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into contact.”
City of Canton v. Harris, 489 U.S. 378, 388 (1989). We followed suit that same year
when a plaintiff sought to impose individual liability on supervisory public officials.
Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). Deliberate indifference continues
to be the applicable standard for supervisory liability. See, e.g., Brown v. Muhlenberg
Township, 269 F.3d 205, 216 (citing and quoting Sample, 885 F.2d at 1118).
In light of this analysis, we respectfully disagree with the Ricker Court’s decision
to cite and rely on the “direct and active” language from Grabowski. We also conclude
that the deliberate indifference standard had been clearly established prior to 1999 and no
reasonable official could claim a higher showing would be required to establish
supervisory liability. Therefore, any claim to qualified immunity based on an attack
against the deliberate indifference standard fails.
* * * * *
For the reasons stated, we dismiss for lack of jurisdiction the portion of the

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Supervisor Defendants’ appeal concerning supervisory liability, and affirm the District
Court’s order denying summary judgment on the qualified immunity defense.

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