                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                          Nos. 15-3360 and 15-3361
                                ____________

                               MATTHEW CONTE

                                      v.

                   JOSE R. RIOS, an incarcerated individual;
           RANDY RUEDIGER, in his individual and official capacity;
           MIDDLESEX TOWNSHIP; DAVID WELLINGTON, in his
              individual and official capacity; MARS BOROUGH;
               OFFICER ANDRA SCHMID, in her individual and
                     official capacity; ADAMS TOWNSHIP

                                  David Wellington,
                                  Appellant No. 15-3360

                                   Randy Ruediger,
                                  Appellant No. 15-3361
                                 ____________

                  On Appeal from United States District Court
                   for the Western District of Pennsylvania
                         (W.D. Pa. No. 3-14-cv-00225)
                   District Judge: Honorable Kim R. Gibson
                                ____________

                           Argued June 21, 2016
         Before: FISHER, GREENAWAY JR. and ROTH, Circuit Judges.

                            (Filed: August 1, 2016)




Louis C. Long, Esq. [ARGUED]
Suzanne B. Merrick, Esq.
Thomas Thomas & Hafer
525 William Penn Place
37th Floor, Suite 3750
Pittsburgh, PA 15219
       Counsel for David Wellington

Scott G. Dulop, Esq.
Paul D. Krepps, Esq.
April L. Cressler, Esq.
Christian D. Marquis, Esq.
Marshall Dennehey Warner Coleman & Goggin
600 Grant Street
2900 U.S. Steel Tower
Pittsburgh, PA 15219

John J. Hare, Esq.
Shane Haselbarth, Esq. [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103
       Counsel for Defendants and Randy Ruediger

Steven M. Toprani, Esq.
Dodaro Matta & Cambest
1001 Ardmore Boulevard, Suite 100
Pittsburgh, PA 15221

David V. Weicht, Esq. [ARGUED]
Alexander B. Wright, Esq.
Leech Tishman Fuscaldo & Lampl
525 William Penn Place, 28th Floor
Pittsburgh, PA 15219
       Counsel for Matthew Conte




                                         2
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       Matthew Conte filed a complaint in the Western District of Pennsylvania asserting

a substantive due process claim pursuant to 42 U.S.C. § 1983 against appellants, Sergeant

Randy Ruediger, an officer from the Middlesex Township Police Department, and

Officer David Wellington of the Mars Borough Police Department. Conte then filed an

amended complaint. In response, the appellants filed individual motions to dismiss. In

those motions they asserted, in part, that they were entitled to qualified immunity. The

District Court deferred ruling on the qualified immunity issue and denied the motions to

dismiss without prejudice. We will vacate the qualified immunity section of the District

Court’s order and remand.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.1


       *
          This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
        1
          In reviewing an order denying a motion to dismiss on qualified immunity
grounds, this Court must accept the plaintiff’s allegations as true and draw all inferences
in his favor. George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013).
                                             3
       The events that gave rise to this action took place in June 2013. José Rios was

parked on a public street in Middlesex Township, Pennsylvania when Ruediger noticed

him. Ruediger initiated contact and then falsely suggested to Rios that he was a suspect

despite the fact that Rios was not involved in any suspicious or illegal activity. Rios

panicked and fled the scene. A chase ensued.

       During the chase, Wellington and another officer2 joined Ruediger. The three

officers followed Rios through residential and commercial areas, sometimes reaching

speeds of 110 to 120 miles per hour. The traffic was so heavy at one point that the third

officer backed off of his pursuit of Rios when he was caught in a line of stopped cars.

Because of these conditions, Wellington radioed Ruediger and questioned whether they

should terminate the chase. Ruediger radioed the Northern Regional Police, who had

jurisdiction at that point, to get clearance to continue but did not wait for a response and

continued to follow Rios.

       The chase ended when Rios crashed into Conte’s vehicle while Conte was waiting

at a red light at a shopping center intersection. Rios was traveling approximately 80 miles

per hour when he hit Conte.

       Conte filed a § 1983 complaint in the Western District of Pennsylvania against the

three officers, in their individual capacities, and their respective townships. He asserted

that the officers’ pursuit of Rios deprived him of his rights under the Fourteenth

Amendment. Conte later filed an amended complaint.

       2
           The other officer is not involved in this appeal.
                                                 4
       The appellants individually filed motions to dismiss the amended complaint,

asserting in part that they were entitled to qualified immunity. The District Court denied

their motions without prejudice, deferring a ruling on the qualified immunity issue. The

District Court found that the amended complaint was sufficient to state a Fourteenth

Amendment claim, but that more discovery was needed because of unresolved factual

issues. The appellants individually appealed the District Court’s qualified immunity

decision and their appeals were consolidated.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). This

Court may have jurisdiction over a collateral order, such as the one here, if it is deemed

final under 28 U.S.C. § 1291. This Court may review a qualified immunity ruling when

the order appealed from “turns on an issue of law” because it is then deemed final.3

Conversely, if the qualified immunity question “turns on the sufficiency of the evidence,

it may not be appealed until the district court enters final judgment in the case.”4

       We have held that, where a district court holds that a complaint is sufficiently

pleaded but defers ruling on a qualified immunity defense, “the practical effect of the

district court’s order [is] a denial of the defense of qualified immunity.”5 As such, “‘[a]

district court’s perceived need for discovery does not impede immediate appellate review

       3
         Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014) (quoting
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
       4
         Walker v. Horn, 286 F.3d 705, 710 (3d Cir. 2002) (quoting In re Montgomery
Cty., 215 F.3d 367, 374 (3d Cir. 2000)).
       5
         George, 738 F.3d at 571.
                                              5
of . . . legal questions . . . . [U]ntil [the] threshold immunity questions are resolved,

discovery should not be allowed.’”6

       The District Court deferred ruling on the qualified immunity issue, reasoning that

more discovery was necessary for the remaining material factual issues but did not

specifically state what those issues were. The District Court deferred ruling only after

considering whether the amended complaint had sufficiently established Conte’s § 1983

claims. Under George, this Court has jurisdiction because the District Court deferred

ruling on the qualified immunity issue only after it had considered the sufficiency of the

§ 1983 claims.

                                            III.

       Qualified immunity is an affirmative defense that shields government officials

from liability for civil damages. In deciding whether to grant an official qualified

immunity, the court must consider two questions: One, “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged [in the complaint] show the

officer’s conduct violated a constitutional right?”7 Two, was that right “clearly

established.”8 The order of these two prongs is interchangeable.9

       Here, the District Court identified the right at issue. The District Court then found

that there were disputed issues of material fact and went no further, deferring a decision

       6
        Id. (quoting X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999)).
       7
        Saucier v. Katz, 533 U.S. 194, 201 (2001).
      8
        Id.
      9
        Pearson v. Callahan, 555 U.S. 223, 241–42 (2009) (“[R]igid adherence to
Saucier departs from the general rule of constitutional avoidance.”).
                                            6
on the qualified immunity issue. It reached this conclusion, however, without determining

whether Conte’s Fourteenth Amendment right was clearly established at the time of the

conduct at issue. Moreover, the District Court failed to identify what factual issues were

relevant to its deferral. These omissions constitute legal error that requires us to vacate

the order denying the appellants’ motions to dismiss.10 If the District Court at that point

determines that such a right was clearly established, it may then determine whether the

facts it already found to be in dispute—facts that were not clearly specified in its order—

are material to assessing whether that right was violated.

                                             IV.

       For the reasons set forth above, we will vacate the qualified immunity section of

the District Court’s order and remand. In vacating this order, we are not foreclosing any

opportunity Conte may have to further amend his pleadings.11




       10
            Forbes v. Twp. of Lower Merion, 313 F.3d 144, 149 (3d Cir. 2002)
(“[D]ispositions of a motion in which a party pleads qualified immunity include, at
minimum, an identification of relevant factual issues and an analysis of the law that
justifies the ruling with respect to those issues.”); see also Grant v. City of Pittsburgh, 98
F.3d 116, 123 (3d Cir. 1996) (“On remand the district court should analyze separately the
conduct of each [defendant] against the constitutional right allegedly violated.”).
        11
           Leave to amend must be granted sua sponte before dismissing civil rights
complaints, unless doing so would be inequitable or futile. Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
                                               7
