                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2000

Bines v. Kulaylat
Precedential or Non-Precedential:

Docket 98-1635




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Recommended Citation
"Bines v. Kulaylat" (2000). 2000 Decisions. Paper 126.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/126


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Filed June 12, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1635

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

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-01528)

District Judge: Honorable Robert S. Gawthrop, III

Submitted Under Third Circuit LAR 34.1(a)
April 10, 2000

BEFORE: NYGAARD, ALITO, and GIBSON,*
Circuit Judges.

(Filed: June 12, 2000)
_________________________________________________________________

* The Honorable John R. Gibson, United States Circuit Judge for the
Eighth Circuit Court of Appeals, sitting by designation.
       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

OPINION OF THE COURT

NYGAARD, Circuit Judge.

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.

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.

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I. Background

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.

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.

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.

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

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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.

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.

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.

II. Discussion

A. The Good-Faith Claim

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

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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).

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).

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.

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)).

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

                                5
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).

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.

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).

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.

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

                               6
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.

B. The Qualified-Immunity Claim

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.

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.

III. Conclusions

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

                                  7
jurisdiction to review the good-faith claim presented in this
interlocutory appeal.

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.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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