                                           NOT PRECEDENTIAL
              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                        _____________

                            No. 16-4131
                           _____________

LORI ROTH, Administratrix of the Estate of Evan Michael Roth, Deceased

                                  v.

 CITY OF HERMITAGE; BRIAN E. BLAIR, Hermitage Chief of Police;
               ERIC JEWELL, Deputy Chief-Investigations
 a/k/a Paul Eric Jewell; ADAM PICCIRILLO, Deputy Chief-Operations;
     DETECTIVE TODD SAYLOR, DETECTIVE JOHN MILLER;
  CORPORAL DANIEL K. YOUNG; OFFICE PHILLIP SCIARETTA;
      OFFICE CHAD NYCH; OFFICER CHRISTOPHER MORSE;
         J. BRADLEY MCGONIGLE, Mercer County Coroner &
                           Medical Examiner

                  J. Bradley McGonigle, Mercer County
                      Coroner & Medical Examiner,
                                        Appellant
                           _______________

            On Appeal from the United States District Court
               for the Western District of Pennsylvania
                       (D.C. No. 2-16-cv-00410)
                 District Judge: Hon. Cathy Bissoon
                           _______________

              Submitted Under Third Circuit LAR 34.1(a)
                         September 6, 2017

  Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.

                      (Filed: September 8, 2017)
                                     _______________

                                        OPINION*
                                     _______________


JORDAN, Circuit Judge

       This case involves allegations of a complicated conspiracy, but the issue before us

on appeal is relatively simple – whether the District Court erred in failing to consider a

qualified immunity defense before dismissing the Plaintiff’s claims on the merits without

prejudice. We conclude there was error and therefore will vacate and remand.

I.     BACKGROUND

       Michael Roth was, tragically, found dead in a friend’s swimming pool after he

attended a party at the friend’s home. Lori Roth, Michael’s mother and the administratrix

of his estate, argues that police insufficiently investigated the circumstances of his death.

At the time of Michael’s death, Appellant J. Bradley McGonigle was the Mercer County

Coroner and Medical Examiner. He directed Dr. Eric Vey to conduct an autopsy on

Michael. The autopsy results were “consistent with drowning” and suggested that

Michael “sustained a neck fracture” before drowning. (App. at 9.) After Dr. Vey issued

his report, which said that the drowning occurred as a result of a “mishap,” McGonigle

did not conduct a further inquest into how or when Michael died, as Roth claims he was

required to do. (App. at 9-10.)




       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
                                              2
         Roth filed this lawsuit against the City of Hermitage, several Hermitage police

officers, and other city officials (collectively the “City Defendants”), as well as against

McGonigle. She claims, as summarized by the District Court, that the lack of an

adequate investigation violated “her federal constitutional right of access to the courts”

and “deprived [her] of the opportunity to seek meaningful judicial redress for her son’s

death in the form of a state-court wrongful death action.” (App. at 10.) And yet Roth

litigated to a successful conclusion a wrongful death action against the family that hosted

the ill-fated pool party, obtaining a more than $100,000 settlement. She is also pursuing

a second wrongful death action against 21 individuals who were present at the party that

night.

         In this case, the City Defendants and McGonigle filed separate motions to dismiss.

McGonigle argued that Roth failed to state a claim against him and also that he was

entitled to qualified immunity. The District Court granted the motions to dismiss,

concluding that Roth had not stated a cognizable denial of access to the courts claim

because she had not alleged that there was an effort to cover-up or conceal information.

Despite that conclusion, the Court also stated that, “to the extent that [Roth] claims that

she cannot meaningfully litigate her pending state court action, that claim is premature.”

(App. at 16.) So the Court granted dismissal without prejudice and stayed the action

“pending the resolution of [Roth’s] state court action.” (App. at 17.) Specifically with

regard to the claims against McGonigle, the District Court noted that the claims would be

dismissed without prejudice because “there is no allegation that Defendant McGonigle

(or any other Defendant) engaged in active concealment or destruction of evidence that

                                              3
could give rise to a viable denial of access to the courts claim.” (App. at 20.) The

District Court was silent with regard to McGonigle’s qualified immunity defense.

       McGonigle filed this timely appeal, arguing that the District Court erred by failing

to consider his request for qualified immunity.

II.    DISCUSSION1

       We asked the parties to brief whether we have jurisdiction despite the District

Court’s entry of a stay. We conclude that we do have jurisdiction and that the District

Court erred by not considering McGonigle’s qualified immunity defense.

       An officer’s entitlement to dismissal on the basis of qualified immunity is not

merely based on “the individual’s desire to avoid the personal costs and aggravations of

presenting a defense.” In re Montgomery Cty., 215 F.3d 367, 374 (3d Cir. 2000).

Instead, “the right not to stand trial is based on far broader concerns for avoiding the

social costs of the underlying litigation, and for ensuring and preserving the effectiveness

of government.” Id. at 374-75. Accordingly, an order implicating a qualified immunity

defense, even implicitly, can be appealable. Id. at 374 (holding that “we have

interlocutory jurisdiction to review an implied denial” of qualified immunity).

       In this case, the District Court effectively (if temporarily) denied qualified

immunity because it ruled that additional factual development was needed in state court

before the Court could fully resolve the merits of Roth’s claim. Therefore, by implication

it concluded that qualified immunity could not be granted on the current record, and that

decision was immediately appealable under the collateral order doctrine. George v.

       1
           The District Court had jurisdiction under 28 U.S.C. § 1331.
                                              4
Rehiel, 738 F.3d 562, 571 (3d Cir. 2013). That is true even though the District Court’s

stay order does not immediately subject McGonigle to “the personal costs and

aggravations of presenting a defense.” In re Montgomery Cty., 215 F.3d at 374. The

order still subjects him to the continued threat of future litigation. Accordingly, we have

jurisdiction.2

       The District Court was required to rule on the qualified immunity defense before

dismissing without prejudice and granting a stay. We have emphasized that “a district

court must avail itself of the procedures available under the Federal Rules to facilitate an

early resolution of the qualified immunity issue.” Thomas v. Indep. Twp., 463 F.3d 285,

300 (3d Cir. 2006). Or, in other words, “the trial court must exercise its discretion in a

way that protects the substance of the qualified immunity defense ... so that officials are

not subjected to unnecessary and burdensome discovery or trial proceedings.” Id.

(alteration in original) (quoting Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998)).

Because the District Court did not consider qualified immunity, McGonigle did not

benefit from “the substance of the qualified immunity defense,” id. (quoting Crawford-

El, 523 U.S. at 597), and remains potentially liable in a future suit.




       2
         Roth argues that the stay order is not appealable since it was a procedural stay
and did not “require all or an essential part of the federal suit to be litigated in a state
forum.” Schall v. Joyce, 885 F.2d 101, 105 (3d Cir. 1989) (quoting Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.11 (1983)). But McGonigle is
not challenging the decision to issue a stay itself; he is challenging the decision to enter a
stay without first considering the question of qualified immunity. And the implicit denial
of qualified immunity is immediately appealable, even if the decision to enter a stay is
not.
                                              5
       Failing to consider the qualified immunity defense before dismissing without

prejudice on the merits was error because the District Court failed to resolve a “motion

asserting qualified immunity … at the earliest possible stage in the litigation.” Id. at 302;

see also James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (recognizing

that we had previously remanded a case to the district court “for an explanation as to why

it denied qualified immunity” when the court rejected a motion to dismiss without

discussing qualified immunity). Accordingly, we will remand to allow the District Court

to consider whether the claims against McGonigle should be dismissed with prejudice on

the basis of qualified immunity.

III.   CONCLUSION

       For the foregoing reasons, we will vacate the order of dismissal and remand to

allow the District Court to consider McGonigle’s qualified immunity defense.




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