Eddy v. Virgin Islands Water & Power Auth.

Decision Date10 July 2001
Docket NumberNo. 99-3849,99-3849
Citation256 F.3d 204
Parties(3rd Cir. 2001) GABRIELLE EDDY v. VIRGIN ISLANDS WATER AND POWER AUTHORITY; JAMES BROWN; JOHN DOE I; JOHN DOE II; JOHN DOE III; JOHN DOE IV VIRGIN ISLANDS WATER AND POWER AUTHORITY; JAMES BROWN; RANDOLPH HARLEY, APPELLANTS
CourtU.S. Court of Appeals — Third Circuit

ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (District Court No. 96-CV-00048) District Court Judge: Thomas K. Moore

[Copyrighted Material Omitted]

Samuel H. Hall, Jr. (argued) Marie E. Thomas Birch de Jongh Hindels & Hall Poinsettia House at Bluebeard's Castle, St. Thomas, V.I., Counsel for Appellant

James M. Derr (argued), St. Thomas, V.I., Counsel for Appellees

Before: Mansmann, Alito, Circuit Judges, and Ackerman, Senior District Judge1

OPINION FOR THE COURT

Alito, Circuit Judge

This is an appeal from a District Court order denying a motion for summary judgment by the defendants in an action asserting a constitutional tort claim. The defendants raised the defense of qualified immunity, but the District Court rejected that defense, primarily on the ground that it had been waived because it was not asserted until summary judgment. We reverse in part and remand for further proceedings.

I.

Plaintiff Gabrielle Eddy was employed by the Virgin Islands Water and Power Authority ("WAPA") as a lineman. The parties disagree about the extent of his training and whether he was trained to perform work at WAPA's facility at Krum Bay, St. Thomas, the location of the accident that led to this lawsuit.

On June 2, 1994, a switch on a high voltage line needed to be replaced. A determination was made that the work would be done without shutting off the power. Defendant James Brown, the acting Superintendent of the Line Department, instructed Eddy to perform the work. Eddy claims that he informed Brown that he was unqualified to do the work but that Brown told him that he would be subject to discipline and possible termination if he refused. According to Eddy, WAPA provided him with improper clothing, tools, and equipment to perform this work on a live line. Among other problems, Eddy asserts that he was required to use an ordinary metal ratchet wrench (as opposed to the insulated wrenches normally used for these procedures) and was forced to wear a polyester uniform (instead of the 100% cotton clothing required under OSHA regulations). During the switch replacement, Eddy's wrench slipped, passed in the vicinity of an electric insulator and, as Eddy characterizes it in his brief, he was engulfed in a fireball. After this incident, WAPA fired Eddy, and OSHA cited WAPA for a number of violations.

Eddy commenced this action against WAPA and several named and unnamed individuals. In addition to three tort claims under Virgin Islands law, Eddy asserted a claim based directly on the Fourteenth Amendment and a claim under 42 U.S.C. S 1983. Eddy voluntarily dismissed two of the three territorial law claims, and the remaining territorial law claim is not before us in this appeal. In addition, the District Court dismissed the claim based directly on the Fourteenth Amendment, holding that it was "duplicative of " the section 1983 claim, and that dismissal is likewise not before us now.

The defendants moved for summary judgment on the section 1983 claim, but the District Court denied their motion. The Court held that "Eddy clearly has established that material facts remain in dispute concerning whether the individual defendants' actions were so outrageous that they `shock the conscience' of [the] Court." July 20, 1999 Dist. Ct. Op. at 6-7. The District Court rejected the defendants' defense of qualified immunity because they "did not raise this affirmative defense until filing this motion for summary judgment, approximately eighteen months after this case began." Id. at 7. The Court interpreted dictum in a footnote in an opinion of this Court to mean that "failure to include qualified immunity in [the] answer to [the] complaint results in the involuntary waiver of this affirmative defense." Id. (citing Frett v. Government of the Virgin Islands, 839 F.2d 968, 973 n.1 (3d Cir. 1988)). The District Court went on to provide two alter native bases for rejecting the defense of qualified immunity. The Court concluded that the defendants had failed to show that their challenged actions were "discretionary" rather than ministerial, id. at 7 n.2, and that "it is a proper question for the jury to determine if defendants knew or reasonably should have known that their conduct would subject them to liability." Id. at 8. This appeal followed.2

II.

The appellants invoke our jurisdiction under 28 U.S.C. S 1291, which authorizes us to hear appeals from "final decisions" of the District Court of the Virgin Islands. The order in question here is not a "final" order in the usual sense, but certain collateral orders are considered to be final orders and thus are immediately appealable. To qualify under the collateral order doctrine, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. See Johnson v. Jones, 515 U.S. 304, 310 (1995); In re Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000). The Supreme Court has recognized that an order rejecting a qualified immunity defense at the summary judgment stage may be immediately appealable, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), but "only to the extent the denial turns on an issue of law." In re Montgomery County, 215 F.3d at 373 (citing Johnson v. Jones, 515 U.S. at 313); Grant v. City of Pittsburgh, 98 F.3d 116, 119-20 (3d Cir. 1996) ("To the extent they turn on an issue of law, decisions denying public officials qualified immunity are considered final under the collateral order doctrine."). If we have jurisdiction to r review an order rejecting qualified immunity at the summary judgment stage, our review of the order is plenary. See, e.g., Acierno v. Cloutier, 40 F.3d 597, 609 (3d Cir . 1994).

Under the qualified immunity defense, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does 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). In determining whether qualified immunity applies in a specific case, we "first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all." Wilson v. Layne, 526 U.S. 603, 609 (1999); see also Siegert v. Gilley, 500 U.S. 226, 232 (1991); Torres v. United States, 200 F.3d 179, 184 (3d Cir. 1999); Giuffre v. Bissell, 31 F.3d 1241, 1247, 1255 (3d Cir. 1994). "[I]f so, [we] proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson, 526 U.S. at 609 (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)).

"A right is clearly established if its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right." Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir. 2000). Moreover, "in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). A right may be clearly established, however, even if there is no "previous precedent directly in point." Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989); see also Assaf v. Field, 178 F.3d 170, 177 (3d Cir. 1999)."The ultimate issue is whether . . . reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." Good, 891 F.2d at 1092.

III.

With these principles in mind, we turn to the specific issues before us in this appeal. The first issue that we must address is the correctness of the District Court's holding that the individual defendants waived the defense of qualified immunity by failing to raise the defense until they submitted their motion for summary judgment. This is an issue of law over which we have jurisdiction under the collateral order doctrine, and we hold that the District Court failed to apply the proper standard for determining whether a waiver occurred.

Qualified immunity is an affirmative defense, see Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995), and therefore under Rule 8(c) of the Federal Rules of Civil Procedure it should be asserted in the appropriate responsive pleading. But under established circuit law, the failure to do so does not automatically result in a waiver. Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir. 1991); see also Pro v. Donatucci, 81 F.3d 1283, 1286 n.2 (3d Cir. 1996); Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1373 (3d Cir. 1993). As we have stated

Under Fed.R.Civ.P. 15(a), a responsive pleading may be amended at any time by leave of court to include an affirmative defense, and "leave shall be freely given when justice so requires." Unless the opposing party will be prejudiced, leave to amend should generally be allowed. Moreover, under Fed.R.Civ.P. 15(c), issues tried by the express or implied consent of the parties are "treated in all respects as if they had been raised in the pleadings." It has been held that a "defendant does not waive an affirmative defense if`[h]e raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.' "

Charpentier, 937 F.2d at 863-64 (internal citations omitted). Thus, "[e]ven though a motion for summary judgment is not the most appropriate way to raise a previously unpled defense of immunity," Kleinknecht, 989 F .2d at 1374, in cases in which the plaintiff was not prejudiced, we have held that there was no...

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