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No Interlocutory Appeal for Good Faith Defense
The Court of Appeals for the Seventh Circuit held that the requirements of the Prison Litigation Reform Act (PLRA) do not apply to properly characterized habeas corpus petitions under 18 U.S.C. §§ 2241, 2254, or 2255, finding that those actions are not "civil actions" within the meaning of the PLRA. The court also held that the certificate of appealability requirement that applies to habeas actions does not apply to a state prisoner's action under § 2254 that challenges the results of a prison disciplinary hearing resulting in the denial of good-time credits.
The Court consolidated two cases for purposes of oral arguments and opinion. First was the case of federal prisoner Jimmy Walker, who was disciplined for damaging a cell door and sanctioned to the forfeiture of 14 days of good time credits. He filed a petition for a writ of habeas corpus under § 2241 but the District Court issued a sua sponte dismissal of the action prior to service and Walker appealed.
The second case was that of Indiana state prisoner Joseph Finfrock. Finfrock filed a habeas corpus petition under § 2254, attacking five separate disciplinary decisions, three of which resulted in the retraction of good-time credits. Frinfrock's petition was dismissed and he appealed.
At the outset, the Court concluded that state prisoners who are challenging the results of prison disciplinary proceedings which resulted in the loss of good-time credits must proceed under § 2254, not § 2241.
In holding that the requirements of the PLRA do not apply to habeas corpus actions, the Court concluded that the unique status of habeas corpus petitions, the legislative history of the PLRA and the AEDPA, and the administrative problems of attempting to apply both regimes to the same set of cases, all point to the Court's conclusion that habeas corpus actions are not civil actions within the meaning of the PLRA.
This is an important but confusing ruling because it involves a very complex area of the law. The decision brings the Seventh Circuit in line with its sister circuits who have ruled on the issue. But three judges dissented from the denial of rehearing en banc , urging en banc review of these issues for several reasons. See: Walker v. O'Brien , 216 F.3d 626 (7th Cir. 2000). g
The Court of Appeals for the
Third Circuit dismissed the interlocutory appeal of the denial of a prison doctor's motion for summary judgment, holding that the court did not have jurisdiction to hear the appeal.
Pennsylvania state prisoner Frank Bines brought suit against prison officials and a contract physician, Nuhud Kulaylat, alleging the denial of adequate medical care. Kulaylat's answer included twenty-three separate affirmative defenses, including both qualified immunity and good faith. Kulaylat later moved for summary judgment based upon his good faith defense, but not on the basis of qualified immunity.
The District Court rejected Kulaylat's motion, concluding that a genuine issue of material fact existed concerning Kulaylat's state of mind. The court found that there was insufficient evidence to support his claim that he treated Bines in the good faith belief that his treatment did not deprive Bines of his constitutional rights. The Court noted that Kulaylat could renew his motion once the record was developed further.
Instead, Kulaylat filed an interlocutory appeal, arguing that the District Court erred in denying summary judgment on his good-faith defense. He also asked the appellate court to decide whether he was entitled to qualified immunity, even though he failed to assert this defense as a basis for summary judgment.
The Court did not reach the merits of Kulaylat's arguments, holding that an order denying summary judgment based on a good-faith defense does not constitute a final, collateral order appealable under 28 U.S.C. § 1291. The court also held that the qualified immunity issue was not properly before the court.
Generally, the court has no jurisdiction under 28 U.S.C. § 1291 to review interlocutory orders such as a denial of summary judgment. However, the "collateral order doctrine" excepts a narrow range of interlocutory decisions from the general rule. To fall within the exception, the challenged order must satisfy the three-prong analysis established by Coopers & Lybrand v. Livesay , 437 U.S. 463, 98 S.Ct. 2454 (1978).
The Court held that it lacked jurisdiction to review the denial of Kulaylat's good-faith claim because the claim failed to satisfy any of the three requirements of the collateral order doctrine's exception.
The Court noted that while qualified immunity protects a defendant from suit, good-faith immunity merely protects a defendant from liability. Wyatt v. Cole , 504 U.S. 158, 165, 112 S.Ct. 1827 (1992). See: Bines v. Kulaylat , 215 F.3d 381 (3rd Cir. 2000).
The Court consolidated two cases for purposes of oral arguments and opinion. First was the case of federal prisoner Jimmy Walker, who was disciplined for damaging a cell door and sanctioned to the forfeiture of 14 days of good time credits. He filed a petition for a writ of habeas corpus under § 2241 but the District Court issued a sua sponte dismissal of the action prior to service and Walker appealed.
The second case was that of Indiana state prisoner Joseph Finfrock. Finfrock filed a habeas corpus petition under § 2254, attacking five separate disciplinary decisions, three of which resulted in the retraction of good-time credits. Frinfrock's petition was dismissed and he appealed.
At the outset, the Court concluded that state prisoners who are challenging the results of prison disciplinary proceedings which resulted in the loss of good-time credits must proceed under § 2254, not § 2241.
In holding that the requirements of the PLRA do not apply to habeas corpus actions, the Court concluded that the unique status of habeas corpus petitions, the legislative history of the PLRA and the AEDPA, and the administrative problems of attempting to apply both regimes to the same set of cases, all point to the Court's conclusion that habeas corpus actions are not civil actions within the meaning of the PLRA.
This is an important but confusing ruling because it involves a very complex area of the law. The decision brings the Seventh Circuit in line with its sister circuits who have ruled on the issue. But three judges dissented from the denial of rehearing en banc , urging en banc review of these issues for several reasons. See: Walker v. O'Brien , 216 F.3d 626 (7th Cir. 2000). g
The Court of Appeals for the
Third Circuit dismissed the interlocutory appeal of the denial of a prison doctor's motion for summary judgment, holding that the court did not have jurisdiction to hear the appeal.
Pennsylvania state prisoner Frank Bines brought suit against prison officials and a contract physician, Nuhud Kulaylat, alleging the denial of adequate medical care. Kulaylat's answer included twenty-three separate affirmative defenses, including both qualified immunity and good faith. Kulaylat later moved for summary judgment based upon his good faith defense, but not on the basis of qualified immunity.
The District Court rejected Kulaylat's motion, concluding that a genuine issue of material fact existed concerning Kulaylat's state of mind. The court found that there was insufficient evidence to support his claim that he treated Bines in the good faith belief that his treatment did not deprive Bines of his constitutional rights. The Court noted that Kulaylat could renew his motion once the record was developed further.
Instead, Kulaylat filed an interlocutory appeal, arguing that the District Court erred in denying summary judgment on his good-faith defense. He also asked the appellate court to decide whether he was entitled to qualified immunity, even though he failed to assert this defense as a basis for summary judgment.
The Court did not reach the merits of Kulaylat's arguments, holding that an order denying summary judgment based on a good-faith defense does not constitute a final, collateral order appealable under 28 U.S.C. § 1291. The court also held that the qualified immunity issue was not properly before the court.
Generally, the court has no jurisdiction under 28 U.S.C. § 1291 to review interlocutory orders such as a denial of summary judgment. However, the "collateral order doctrine" excepts a narrow range of interlocutory decisions from the general rule. To fall within the exception, the challenged order must satisfy the three-prong analysis established by Coopers & Lybrand v. Livesay , 437 U.S. 463, 98 S.Ct. 2454 (1978).
The Court held that it lacked jurisdiction to review the denial of Kulaylat's good-faith claim because the claim failed to satisfy any of the three requirements of the collateral order doctrine's exception.
The Court noted that while qualified immunity protects a defendant from suit, good-faith immunity merely protects a defendant from liability. Wyatt v. Cole , 504 U.S. 158, 165, 112 S.Ct. 1827 (1992). See: Bines v. Kulaylat , 215 F.3d 381 (3rd Cir. 2000).
Related legal case
Bines v. Kulaylat
| Year | 2000 |
|---|---|
| Cite | 215 F.3d 381 (3rd Cir. 2000) |
| Level | Court of Appeals |
Bines v. Kulaylat, 215 F.3d 381, 215 F.3d 381 (3d Cir. 06/12/2000)
[1] U.S. Court of Appeals, Third Circuit
[2] No. 98-1635
[3] 215 F.3d 381, 215 F.3d 381, 2000
[4] June 12, 2000
[5] FRANK BINES
V.
N. KULAYLAT;
MITCHELL SADAR; N. HOLLAND-HULL; SADAR PSYCHOLOGICAL SERVICE;
DENNIS MOYER, DR.; DORIS STABLEY; SKIP FIELDS; SPECIAL NEEDS UNIT, S.N.U.; MARY ANN WILLIAMS; THOMAS D. STACHELEK, MR.;
DONALD T. VAUGHN, MR.; DEPARTMENT OF CORRECTIONS
NUHAD KULAYLAT, M.D., APPELLANT
[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 96-cv-01528)
[7] Alan S. Gold, Esq. Monaghan & Gold 7837 Old York Road Elkins Park, PA 19027 Attorney for Appellant Robert K. Kalmbach, Esq. 418 West State Street Kennett Square, PA 19348 Attorney for Appellee
[8] Before: Nygaard, Alito, and Gibson,* Circuit Judges. * The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.
[9] The opinion of the court was delivered by: Nygaard, Circuit Judge.
[10] District Judge: Honorable Robert S. Gawthrop, III
[11] Submitted Under Third Circuit LAR 34.1(a) April 10, 2000
[12] OPINION OF THE COURT
[13] Appellee Frank Bines, a state prison inmate, alleges that numerous defendants are liable for providing him with inadequate medical care during his incarceration. Appellant Nuhad Kulaylat, a contract physician, is one of the defendants named in Bines' complaint. Kulaylat moved for summary judgment based, inter alia, on a good-faith defense. The District Court denied the motion, concluding that genuine issues of material fact remain in dispute. Kulaylat appeals, arguing that the District Court erred by denying summary judgment based on his good-faith defense because the record does not contain any evidence that he acted in bad faith. He further argues that Bines waived any opposition to the defense when he failed to respond to the motion for summary judgment. Although he failed to assert it as a basis for summary judgment, Kulaylat now asks us to decide whether he is entitled to qualified immunity.
[14] We do not reach the merits of Kulaylat's arguments, because we hold that an order denying summary judgment based on a good-faith defense does not constitute afinal, collateral order appealable under 28 U.S.C. S 1291. Because we hold that such an order is not final, and that the qualified-immunity issue is not properly before us, we will dismiss this appeal for lack of jurisdiction.
[15] I. Background
[16] At all times relevant to this appeal, Frank Bines was an inmate at the Commonwealth of Pennsylvania's State Correctional Institution at Graterford. Dr. Nuhad Kulaylat was a private physician who worked as an independent contractor for Correctional Physician Services, Inc. Correctional Physician Services was a private corporation under contract with the Pennsylvania Correctional System to provide certain specified medical services to Graterford's inmates. Through this chain of contractual relationships, Bines was referred to Kulaylat for medical treatment.
[17] During a November 1995 medical consultation, Kulaylat informed Bines that Bines was infected with the human immunodeficiency virus (HIV). The virus had apparently caused lymph nodes on Bines' neck and chest to swell and harden. Complaining that the swelling was painful, Bines requested that Kulaylat either resect the lymph nodes or prescribe palliative medication. Kulaylat concluded that there was no medical reason to excise the swollen lymph nodes and declined to do so. He also concluded that"Bines did not show any indication of suffering from severe and substantial pain as a result of the lymph nodes," and so prescribed no pain medication at that time. See App. at 93a.
[18] Over the next two months, Kulaylat examined Bines on at least two more occasions. Each time, Bines renewed his request that his swollen lymph nodes be removed, or that Kulaylat prescribe medication to ease the pain they were causing. Each time, Kulaylat concluded that neither were medically necessary. He did, however, prescribe other medications, as well as nutritional supplements, to treat other symptoms associated with Bines' HIV infection.
[19] In February 1996, Bines filed a civil complaint against the Pennsylvania Department of Corrections, various Department employees, Kulaylat and a number of other private defendants. Although the complaint alleged numerous violations of various constitutionally protected rights, only one claim is relevant to this appeal. According to that claim, Bines alleged that the defendants had acted with deliberate indifference to his medical needs and violated the Eighth Amendment's protection against cruel and unusual punishment. For present purposes, we need not recite the allegations more specifically except to note that Bines accused Kulaylat of acting with deliberate indifference by repeatedly declining Bines' requests to treat his painful and swollen lymph nodes.
[20] In his answer to Bines' complaint, Kulaylat pleaded twenty-three separate affirmative defenses, including both qualified immunity and good faith. He subsequently moved the District Court for summary judgment based on, inter alia, his good-faith defense. Although the motion also asserted three other grounds for summary judgment, qualified immunity was not among them. Bines did not oppose the motion. See Dist. Ct. Order at 2.
[21] The District Court rejected Kulaylat's motion for summary judgment on all grounds asserted therein. With respect to Kulaylat's good-faith defense, the court concluded that summary judgment was inappropriate because there remained genuine issues of material fact concerning Kulaylat's state of mind. In other words, the District Court concluded that the "sparse" record before it was insufficient to support Kulaylat's claim that he had treated Bines in the good-faith belief that his treatment did not deprive Bines of his constitutional rights. See Dist. Ct. Order at 4; see also Def.'s Motion for Summary Judgment at 6:17-19 (App. at 66a). The court also noted, however, that Kulaylat could renew his motion once the record had been further developed. See id. Instead, Kulaylat filed this interlocutory appeal, arguing that the District Court erred by denying summary judgment on his good-faith defense. He also asks us to determine in the first instance whether he is entitled to qualified immunity.
[22] II. Discussion
[23] A. The Good-Faith Claim
[24] As a general rule, we have no jurisdiction under 28 U.S.C. S 1291 to review interlocutory orders such as a denial of summary judgment. Nevertheless, the collateral- order doctrine excepts a narrow range of interlocutory decisions from the general rule. See Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949); We, Inc. v. City of Philadelphia, 174 F.3d 322, 324 (3d Cir. 1999).
[25] There is no question that orders denying absolute immunity are reviewable on interlocutory appeal. See e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982); Helstoski v. Meanor, 442 U.S. 500 (1979); Abney v. United States, 431 U.S. 651 (1977). In Mitchell v Forsyth, the Supreme Court extended the doctrine to include denial of claims to qualified immunity, though only to the extent such denial turns on an issue of law rather than fact. 472 U.S. 511, 525 (1985).
[26] The Supreme Court has not decided whether denial of summary judgment based on a good-faith defense can ever fall within the collateral-order doctrine. We have not, nor has any other circuit court of appeals, decided the issue. Nevertheless, we find our course amply guided by previous decisions in which we have addressed the collateral-order doctrine. Those decisions clearly indicate that denial of summary judgment based on a good-faith defense does not permit an interlocutory appeal.
[27] We have repeatedly expressed our concern that the collateral-order doctrine not "swallow" thefinal-judgment rule, and have " `consistently construed the [doctrine] narrowly rather than expansively.' " Transtech Indus., Inc. v. A&Z;Septic Clean, 5 F.3d 51, 57 (3d Cir. 1993) (quoting Lusardi v. Xerox Corp., 747 F.2d 174, 176-77 (3d Cir. 1984) and citing Praxis Properties, Inc. v. Colonial Sav. Bank, s.l.a., 947 F.2d 49, 54 (3d Cir. 1991)); see also We, Inc., 174 F.3d at 324; Demenus v. Tinton 35 Inc., 873 F.2d 50, 53 (3d Cir. 1989); Borden Co. v. Syk, 410 F.2d 843 (3d Cir. 1969)).
[28] In deciding whether a challenged order fits within the collateral-order doctrine, we have applied the three-prong analysis established in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454 (1978). See Transtech Indus., 5 F.3d at 56-57. To fall within the doctrine, "the order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separable from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment." Transtech Indus. , 5 F.3d at 55 (citing Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at 2457).
[29] Applying those factors in this case, we first conclude that denial of summary judgment based on Kulaylat's good-faith defense does not conclusively determine the disputed question. The District Court has merely concluded that the current record leaves open genuine issues of material fact concerning Kulaylat's state of mind at the time he treated Bines. The court left open the possibility that Kulaylat could renew his motion for summary judgment once the record is more fully developed.
[30] In any event, denial of summary judgment does not preclude Kulaylat from asserting, or the fact finder from accepting, his good-faith defense at trial. And, significantly, unlike qualified immunity, a successful good-faith defense merely protects the defendant from liability, not from suit. See Wyatt v. Cole, 504 U.S. 158, 165 (1992) (concluding that the entitlement to a good-faith defense would not entitle private parties to the qualified immunity from suit accorded to government officials). Cf. We, Inc., 174 F.3d at 330 (holding that the Noerr-Pennington doctrine provides immunity from liability, not from suit).
[31] Second, Kulaylat's good-faith claims are not completely separable from the merits of the underlying action. Unlike the objective test applied to claims of qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800 (1982), good faith turns on the defendant's subjective state of mind. We cannot determine whether Kulaylat acted with deliberate indifference to Bines' serious medical needs without addressing factual questions that the District Court has yet to resolve.
[32] Third, Kulaylat's good-faith defense will not be effectively unreviewable on appeal from final judgment. As already noted, the defense, if accepted, does not make him immune from suit. Thus, requiring him to await final judgment before bringing his appeal would not cause the irretrievable loss of any right to which he is entitled. If the jury returns a verdict against him, Kulaylat may still move the court to
[33] grant judgment as a matter of law, or to grant a new trial. If the court declines, he may still appeal the final judgment to this court. Thus, Kulaylat's good-faith claim fails to satisfy any of the collateral-order doctrine's three requirements for interlocutory appeal. We therefore hold that we lack jurisdiction to review denial of that claim in this interlocutory appeal.
[34] B. The Qualified-Immunity Claim
[35] In addition to seeking interlocutory review of his good- faith defense, Kulaylat also invites us to consider his claim to qualified immunity. We decline to do so because Kulaylat failed to raise qualified immunity as a basis for summary judgment. As a general rule, we will not review an issue on appeal that has not been raised below. See Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1115 (3d Cir. 1993); see also Singleton v. Wulff , 428 U.S. 106, 120 (1976). Although we have made exceptions where failure to consider the issue would result in manifest injustice, see Pritzker, 7 F.3d at 1115 (citing Houghton v. American Guar. Life Ins. Co., 692 F.2d 289, 294 (3d Cir. 1982)), we find no potential for manifest injustice here. The interlocutory nature of this appeal leaves Kulaylat with full opportunity to assert his qualified-immunity claim in the District Court.
[36] The only remaining questions, which revolve around Kulaylat's subjective state of mind, are factual rather than legal. The District Court concluded that "[v]iewed in the light most favorable to the plaintiff, [the record] establishes a material fact concerning Dr. Kulaylat's mental state, that is, whether he acted with deliberate indifference." Dist. Ct. Order at 3. Accordingly, we would lack jurisdiction to consider Kulaylat's qualified-immunity claim even had he asserted it as a basis for summary judgment below.
[37] III. Conclusions
[38] Denial of a motion for summary judgment based on a good-faith defense does not satisfy the requirements of the collateral-order doctrine. Accordingly, we hold that we lack jurisdiction to review the good-faith claim presented in this interlocutory appeal.
[39] We further hold that because Kulaylat did not assert his qualified-immunity claim below, he is barred from raising it in this appeal. Therefore, we will dismiss this appeal, and all issues it raises, for lack of appellate jurisdiction.
[40] A True Copy:
[1] U.S. Court of Appeals, Third Circuit
[2] No. 98-1635
[3] 215 F.3d 381, 215 F.3d 381, 2000
[4] June 12, 2000
[5] FRANK BINES
V.
N. KULAYLAT;
MITCHELL SADAR; N. HOLLAND-HULL; SADAR PSYCHOLOGICAL SERVICE;
DENNIS MOYER, DR.; DORIS STABLEY; SKIP FIELDS; SPECIAL NEEDS UNIT, S.N.U.; MARY ANN WILLIAMS; THOMAS D. STACHELEK, MR.;
DONALD T. VAUGHN, MR.; DEPARTMENT OF CORRECTIONS
NUHAD KULAYLAT, M.D., APPELLANT
[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 96-cv-01528)
[7] Alan S. Gold, Esq. Monaghan & Gold 7837 Old York Road Elkins Park, PA 19027 Attorney for Appellant Robert K. Kalmbach, Esq. 418 West State Street Kennett Square, PA 19348 Attorney for Appellee
[8] Before: Nygaard, Alito, and Gibson,* Circuit Judges. * The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.
[9] The opinion of the court was delivered by: Nygaard, Circuit Judge.
[10] District Judge: Honorable Robert S. Gawthrop, III
[11] Submitted Under Third Circuit LAR 34.1(a) April 10, 2000
[12] OPINION OF THE COURT
[13] Appellee Frank Bines, a state prison inmate, alleges that numerous defendants are liable for providing him with inadequate medical care during his incarceration. Appellant Nuhad Kulaylat, a contract physician, is one of the defendants named in Bines' complaint. Kulaylat moved for summary judgment based, inter alia, on a good-faith defense. The District Court denied the motion, concluding that genuine issues of material fact remain in dispute. Kulaylat appeals, arguing that the District Court erred by denying summary judgment based on his good-faith defense because the record does not contain any evidence that he acted in bad faith. He further argues that Bines waived any opposition to the defense when he failed to respond to the motion for summary judgment. Although he failed to assert it as a basis for summary judgment, Kulaylat now asks us to decide whether he is entitled to qualified immunity.
[14] We do not reach the merits of Kulaylat's arguments, because we hold that an order denying summary judgment based on a good-faith defense does not constitute afinal, collateral order appealable under 28 U.S.C. S 1291. Because we hold that such an order is not final, and that the qualified-immunity issue is not properly before us, we will dismiss this appeal for lack of jurisdiction.
[15] I. Background
[16] At all times relevant to this appeal, Frank Bines was an inmate at the Commonwealth of Pennsylvania's State Correctional Institution at Graterford. Dr. Nuhad Kulaylat was a private physician who worked as an independent contractor for Correctional Physician Services, Inc. Correctional Physician Services was a private corporation under contract with the Pennsylvania Correctional System to provide certain specified medical services to Graterford's inmates. Through this chain of contractual relationships, Bines was referred to Kulaylat for medical treatment.
[17] During a November 1995 medical consultation, Kulaylat informed Bines that Bines was infected with the human immunodeficiency virus (HIV). The virus had apparently caused lymph nodes on Bines' neck and chest to swell and harden. Complaining that the swelling was painful, Bines requested that Kulaylat either resect the lymph nodes or prescribe palliative medication. Kulaylat concluded that there was no medical reason to excise the swollen lymph nodes and declined to do so. He also concluded that"Bines did not show any indication of suffering from severe and substantial pain as a result of the lymph nodes," and so prescribed no pain medication at that time. See App. at 93a.
[18] Over the next two months, Kulaylat examined Bines on at least two more occasions. Each time, Bines renewed his request that his swollen lymph nodes be removed, or that Kulaylat prescribe medication to ease the pain they were causing. Each time, Kulaylat concluded that neither were medically necessary. He did, however, prescribe other medications, as well as nutritional supplements, to treat other symptoms associated with Bines' HIV infection.
[19] In February 1996, Bines filed a civil complaint against the Pennsylvania Department of Corrections, various Department employees, Kulaylat and a number of other private defendants. Although the complaint alleged numerous violations of various constitutionally protected rights, only one claim is relevant to this appeal. According to that claim, Bines alleged that the defendants had acted with deliberate indifference to his medical needs and violated the Eighth Amendment's protection against cruel and unusual punishment. For present purposes, we need not recite the allegations more specifically except to note that Bines accused Kulaylat of acting with deliberate indifference by repeatedly declining Bines' requests to treat his painful and swollen lymph nodes.
[20] In his answer to Bines' complaint, Kulaylat pleaded twenty-three separate affirmative defenses, including both qualified immunity and good faith. He subsequently moved the District Court for summary judgment based on, inter alia, his good-faith defense. Although the motion also asserted three other grounds for summary judgment, qualified immunity was not among them. Bines did not oppose the motion. See Dist. Ct. Order at 2.
[21] The District Court rejected Kulaylat's motion for summary judgment on all grounds asserted therein. With respect to Kulaylat's good-faith defense, the court concluded that summary judgment was inappropriate because there remained genuine issues of material fact concerning Kulaylat's state of mind. In other words, the District Court concluded that the "sparse" record before it was insufficient to support Kulaylat's claim that he had treated Bines in the good-faith belief that his treatment did not deprive Bines of his constitutional rights. See Dist. Ct. Order at 4; see also Def.'s Motion for Summary Judgment at 6:17-19 (App. at 66a). The court also noted, however, that Kulaylat could renew his motion once the record had been further developed. See id. Instead, Kulaylat filed this interlocutory appeal, arguing that the District Court erred by denying summary judgment on his good-faith defense. He also asks us to determine in the first instance whether he is entitled to qualified immunity.
[22] II. Discussion
[23] A. The Good-Faith Claim
[24] As a general rule, we have no jurisdiction under 28 U.S.C. S 1291 to review interlocutory orders such as a denial of summary judgment. Nevertheless, the collateral- order doctrine excepts a narrow range of interlocutory decisions from the general rule. See Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949); We, Inc. v. City of Philadelphia, 174 F.3d 322, 324 (3d Cir. 1999).
[25] There is no question that orders denying absolute immunity are reviewable on interlocutory appeal. See e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982); Helstoski v. Meanor, 442 U.S. 500 (1979); Abney v. United States, 431 U.S. 651 (1977). In Mitchell v Forsyth, the Supreme Court extended the doctrine to include denial of claims to qualified immunity, though only to the extent such denial turns on an issue of law rather than fact. 472 U.S. 511, 525 (1985).
[26] The Supreme Court has not decided whether denial of summary judgment based on a good-faith defense can ever fall within the collateral-order doctrine. We have not, nor has any other circuit court of appeals, decided the issue. Nevertheless, we find our course amply guided by previous decisions in which we have addressed the collateral-order doctrine. Those decisions clearly indicate that denial of summary judgment based on a good-faith defense does not permit an interlocutory appeal.
[27] We have repeatedly expressed our concern that the collateral-order doctrine not "swallow" thefinal-judgment rule, and have " `consistently construed the [doctrine] narrowly rather than expansively.' " Transtech Indus., Inc. v. A&Z;Septic Clean, 5 F.3d 51, 57 (3d Cir. 1993) (quoting Lusardi v. Xerox Corp., 747 F.2d 174, 176-77 (3d Cir. 1984) and citing Praxis Properties, Inc. v. Colonial Sav. Bank, s.l.a., 947 F.2d 49, 54 (3d Cir. 1991)); see also We, Inc., 174 F.3d at 324; Demenus v. Tinton 35 Inc., 873 F.2d 50, 53 (3d Cir. 1989); Borden Co. v. Syk, 410 F.2d 843 (3d Cir. 1969)).
[28] In deciding whether a challenged order fits within the collateral-order doctrine, we have applied the three-prong analysis established in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454 (1978). See Transtech Indus., 5 F.3d at 56-57. To fall within the doctrine, "the order must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separable from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment." Transtech Indus. , 5 F.3d at 55 (citing Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at 2457).
[29] Applying those factors in this case, we first conclude that denial of summary judgment based on Kulaylat's good-faith defense does not conclusively determine the disputed question. The District Court has merely concluded that the current record leaves open genuine issues of material fact concerning Kulaylat's state of mind at the time he treated Bines. The court left open the possibility that Kulaylat could renew his motion for summary judgment once the record is more fully developed.
[30] In any event, denial of summary judgment does not preclude Kulaylat from asserting, or the fact finder from accepting, his good-faith defense at trial. And, significantly, unlike qualified immunity, a successful good-faith defense merely protects the defendant from liability, not from suit. See Wyatt v. Cole, 504 U.S. 158, 165 (1992) (concluding that the entitlement to a good-faith defense would not entitle private parties to the qualified immunity from suit accorded to government officials). Cf. We, Inc., 174 F.3d at 330 (holding that the Noerr-Pennington doctrine provides immunity from liability, not from suit).
[31] Second, Kulaylat's good-faith claims are not completely separable from the merits of the underlying action. Unlike the objective test applied to claims of qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800 (1982), good faith turns on the defendant's subjective state of mind. We cannot determine whether Kulaylat acted with deliberate indifference to Bines' serious medical needs without addressing factual questions that the District Court has yet to resolve.
[32] Third, Kulaylat's good-faith defense will not be effectively unreviewable on appeal from final judgment. As already noted, the defense, if accepted, does not make him immune from suit. Thus, requiring him to await final judgment before bringing his appeal would not cause the irretrievable loss of any right to which he is entitled. If the jury returns a verdict against him, Kulaylat may still move the court to
[33] grant judgment as a matter of law, or to grant a new trial. If the court declines, he may still appeal the final judgment to this court. Thus, Kulaylat's good-faith claim fails to satisfy any of the collateral-order doctrine's three requirements for interlocutory appeal. We therefore hold that we lack jurisdiction to review denial of that claim in this interlocutory appeal.
[34] B. The Qualified-Immunity Claim
[35] In addition to seeking interlocutory review of his good- faith defense, Kulaylat also invites us to consider his claim to qualified immunity. We decline to do so because Kulaylat failed to raise qualified immunity as a basis for summary judgment. As a general rule, we will not review an issue on appeal that has not been raised below. See Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1115 (3d Cir. 1993); see also Singleton v. Wulff , 428 U.S. 106, 120 (1976). Although we have made exceptions where failure to consider the issue would result in manifest injustice, see Pritzker, 7 F.3d at 1115 (citing Houghton v. American Guar. Life Ins. Co., 692 F.2d 289, 294 (3d Cir. 1982)), we find no potential for manifest injustice here. The interlocutory nature of this appeal leaves Kulaylat with full opportunity to assert his qualified-immunity claim in the District Court.
[36] The only remaining questions, which revolve around Kulaylat's subjective state of mind, are factual rather than legal. The District Court concluded that "[v]iewed in the light most favorable to the plaintiff, [the record] establishes a material fact concerning Dr. Kulaylat's mental state, that is, whether he acted with deliberate indifference." Dist. Ct. Order at 3. Accordingly, we would lack jurisdiction to consider Kulaylat's qualified-immunity claim even had he asserted it as a basis for summary judgment below.
[37] III. Conclusions
[38] Denial of a motion for summary judgment based on a good-faith defense does not satisfy the requirements of the collateral-order doctrine. Accordingly, we hold that we lack jurisdiction to review the good-faith claim presented in this interlocutory appeal.
[39] We further hold that because Kulaylat did not assert his qualified-immunity claim below, he is barred from raising it in this appeal. Therefore, we will dismiss this appeal, and all issues it raises, for lack of appellate jurisdiction.
[40] A True Copy:
