983 F.2d 107 (8th Cir. 1993), 92-1459, Slone v. Herman

Docket Nº:92-1459.
Citation:983 F.2d 107
Party Name:Gentry SLONE, Appellee, v. Paul D. HERMAN; Cranston Mitchell, Chairman, Board of Probation and Parole; Michael Finkelstein, General Counsel, Missouri Department of Corrections; Anthony Gawienowski, Former Deputy General Counsel Missouri Department of Corrections, Appellants.
Case Date:January 04, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 107

983 F.2d 107 (8th Cir. 1993)

Gentry SLONE, Appellee,

v.

Paul D. HERMAN; Cranston Mitchell, Chairman, Board of

Probation and Parole; Michael Finkelstein, General Counsel,

Missouri Department of Corrections; Anthony Gawienowski,

Former Deputy General Counsel Missouri Department of

Corrections, Appellants.

No. 92-1459.

United States Court of Appeals, Eighth Circuit

January 4, 1993

Submitted Sept. 18, 1992.

Rehearing Denied Feb. 5, 1993.

Page 108

Gary L. Gardner, Asst. Atty. Gen., Jefferson City, MO, argued, for appellants.

Arthur A. Benson, II, Kansas City, MO, argued (Jamie Kathryn Lansford, on brief), for appellee.

Before JOHN R. GIBSON, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

Gentry E. Slone brought this civil rights action under 42 U.S.C. § 1983 (1988) alleging that the defendants, Paul D. Herman, Chief Probation and Parole Supervisor of the Board of Probation and Parole of the Missouri Department of Corrections; Cranston J. Mitchell, Chairman of the Board of Probation and Parole; Michael H. Finkelstein, General Counsel to the Department of Corrections; and Anthony M. Gawienowski, former Deputy General Counsel to the Department of Corrections, violated several of Slone's constitutional rights by not releasing him from prison after the sentencing court ordered his release. 1 Defendants appeal from the District Court's 2 denial of their motion for summary judgment on the ground of qualified immunity. We affirm.

Slone was convicted in the Circuit Court of Jackson County, Missouri, of armed criminal action and assault. He was sentenced to a prison term of three years for each offense, the sentences to be served concurrently, and was taken into the custody of the Department of Corrections. Later, on November 21, 1989, the sentencing judge, Circuit Judge William W. Ely, entered an order pursuant to Missouri Revised Statute § 217.775 (Supp.1989) (powers of court to grant probation even after convicted person is delivered into custody). This order suspended Slone's sentence effective December 21, 1989, and placed him on probation for five years. Judgment and Sentence of Nov. 21, 1989. The statute allows the state to request a hearing "within ten days of receipt of the court's notification that the court intends to grant probation," Mo.Rev.Stat. § 217.775(3), but defendants did not request a hearing. Judge Ely's order thus became final, and although it apparently was appealable under Missouri Rule 30.01(d), which requires that any notice of appeal from such an order be filed within ten days after it is final, no appeal was taken. Judge Ely's order thus became both final and nonappealable on December 11, 1989.

On December 19, 1989, defendant Herman wrote a letter to Judge Ely stating that the Department of Corrections, after discussing the case with its counsel, had decided not to release Slone because it did not believe the Missouri statutes authorized

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his release. Judge Ely responded that Slone's release was indeed authorized and that he expected the Department to execute his order. The ten-day period to appeal Judge Ely's order already having expired, defendants pursued an informal stay, a writ of prohibition, and a motion to vacate, all of which were denied. Finally, on August 17, 1990, nearly eight months after Slone should have been released pursuant to Judge Ely's order, Judge Ely convened a hearing in his courtroom. As directed by Judge Ely, Slone was brought to the hearing, and Judge Ely thereupon ordered him released as provided in the judge's November 21, 1989 order. After Slone's release, he brought this action.

Initially, we note that this Court has jurisdiction over this appeal. A denial of a motion for summary judgment is not a final judgment, and therefore it ordinarily is not appealable. Wright v. South Ark. Regional Health Ctr., Inc., 800 F.2d 199, 202 (8th Cir.1986). In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), however, the Supreme Court held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." This exception exists because qualified immunity provides "immunity from suit rather than a mere defense to liability [and] is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at 2815 (emphasis in original). Qualified immunity is an affirmative defense, so defendants have the burden of pleading and proving the defense. Harris v. Pirch, 677 F.2d 681, 686 (8th Cir.1982).

We review a grant of summary judgment de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992). The trial court, and this Court on appeal, apply the same standard: whether the record, when viewed in the light most favorable to the non-moving party, shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Thus, defendants not only have the burden of pleading and proving their defense, but the facts must be taken in the light most favorable to Slone.

Generally, prison officials may rely on the defense of qualified immunity to protect them from liability for civil damages. Brown v. Frey, 889 F.2d 159, 165 (8th Cir.1989), cert. denied, 493 U.S. 1088, 110 S.Ct. 1156, 107 L.Ed.2d 1059 (1990). In Harlow v. Fitzgerald, 457 U.S....

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