                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2007

Barton v. Curtis
Precedential or Non-Precedential: Precedential

Docket No. 06-3336




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Recommended Citation
"Barton v. Curtis" (2007). 2007 Decisions. Paper 644.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/644


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                                               PRECEDENTIAL

 UNITED STATES COURT OF APPEALS FOR THE THIRD
                   CIRCUIT


                         No. 06-3336



                  CHRISTOPHER BARTON

                               v.

    WILLIAM A. CURTIS, JR., in his individual capacity,
                                          Appellant



    On Appeal from the District Court of the Virgin Islands
                  (D.C. No. 05-cv-00002)
           District Judge: Hon. Curtis V. Gomez



                     Argued May 7, 2007


Before: SLOVITER, STAPLETON, and VAN ANTWERPEN,
                    Circuit Judges

                     (Filed July 30, 2007)
                             _____


Terryln M. Smock (Argued)
Office of Attorney General of Virgin Islands
Charlotte Amalie, St. Thomas
USVI 00802

      Attorney for Appellant
Andrew C. Simpson (Argued)
Andrew C. Simpson Law Offices
Christiansted, St. Croix
USVI 00820

       Attorney for Appellee

                               _____

                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

                                I.

       William A. Curtis, the Director of the United States
Virgin Islands Department of Justice, Special Investigations
Division, who is the defendant in a suit filed by Christopher
Bryant Barton pursuant to 42 U.S.C. § 1983, appeals from the
order of the District Court of the Virgin Islands denying his
motion for summary judgment. Curtis argues that he is entitled
to qualified immunity because he was acting in his official
capacity in the events at issue. Barton responds that this court
does not have jurisdiction, an issue we must address as a
preliminary matter.

                                II.

        A brief statement of the facts and procedural posture is
necessary to put the matter before us in context. Barton and his
former wife had been involved in a custody dispute when Mrs.
Barton, on August 8, 2001, filed a complaint in the Territorial
Court of the Virgin Islands alleging that Barton had removed
their two children from the territory in violation of an order of
that court. After investigating Mrs. Barton’s report, Curtis
submitted an affidavit on January 8, 2003, to the Territorial
Court in support of probable cause to arrest Barton for violating
14 V.I.C. § 843, Fraudulent Claims Upon the Government. The
affidavit stated that the Territorial Court awarded physical
custody to Mrs. Barton pursuant to a Florida court order (dated

                                 2
August 24, 1999); that Barton brought his two children to the
Virgin Islands in violation of the Florida court order; and that the
Territorial Court found that Barton made “fraudulent
misrepresentations of fact[ ]” when he successfully petitioned
the court for sole custody of his two children on September 11,
2000. App. at 87-89.

       Barton was arrested in South Carolina on a fugitive
warrant and was sent to the Virgin Islands where he was tried in
2004 on three counts of “knowingly and willfully conceal[ing] a
material fact from a government agency” in violation of 14
V.I.C. § 843(2). App. at 83-84. Specifically, the charge was
that he had failed to inform the Territorial Court “that in August
of 1999, he had been ordered by a Florida court and/or general
master of said court,” (1) “to return his children to the state of
Florida,” (2) “to relinquish the physical custody of his two
children to the children’s mother,” and (3) “not to leave Broward
County, Florida with his children.” App. at 83-84.

        On February 25, 2004, Barton was convicted by a jury on
all three counts and was sentenced to imprisonment. However,
on December 30, 2004, the District Court Appellate Division
reversed Barton’s conviction. Barton v. Gov’t of the V.I., No.
Civ.A.2004-89, 2004 WL 3048845 (D.V.I. Dec. 30, 2004). The
Appellate Division relied heavily upon an affidavit submitted by
Judge Robert Carney, the Florida judge assigned to Barton v.
Barton, Case No. 99-8422 (37) (93), who stated that:

       NO Order ratifying the General Master’s Report
       was ever entered in this matter, again, NO Custody
       Order was ever entered in this case by me granting
       any rights of custody to either parent regarding the
       above referenced children.

App. at 77.

       Thereafter, Barton filed this action in the District Court of
the Virgin Islands, claiming that Curtis, in his individual
capacity, violated 42 U.S.C. § 1983 “by denying him due
process under the law and his right to liberty.” Curtis’ Br. at 3.
On August 22, 2005, Curtis filed a motion for summary

                                 3
judgment on the basis of qualified immunity. After the District
Court held a hearing, it concluded that there were material facts
in dispute and denied Curtis’ motion for summary judgment.
Specifically, the District Court found that whether Curtis
knowingly or recklessly presented false information to the
Territorial Court in his affidavit in support of probable cause is a
material issue of fact to be determined by the jury. Curtis then
filed a notice of appeal.1

                                III.

       Under the collateral order doctrine established by the
Supreme Court, there is interlocutory appellate jurisdiction over
orders that fall into “that small class [of orders] which finally
determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.”
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949). In Mitchell v. Forsyth, 472 U.S. 511, 528 (1985), the
Supreme Court held that a claim of qualified immunity is
reviewable on interlocutory appeal under Cohen where “(1) the
defendant was a public official asserting a defense of ‘qualified
immunity,’ and (2) the issue appealed concerned, not which facts
the parties might be able to prove, but, rather, whether or not
certain given facts showed a violation of ‘clearly established’
law.” Johnson v. Jones, 515 U.S. 304, 311 (1995) (citing
Mitchell, 472 U.S. at 528).

        We summarized the applicable principles in Schieber v.
City of Philadelphia, 320 F.3d 409 (3d Cir. 2003), where we
stated:

       This Court has jurisdiction to review a District
       Court order denying qualified immunity at the
       summary judgment stage under the collateral order


       1
         This Court has jurisdiction under 28 U.S.C. § 1291 over
all appeals from final orders issued in the District Court of the
Virgin Islands.

                                 4
       doctrine to the extent that the denial turns on
       questions of law. Mitchell v. Forsyth, 472 U.S.
       511, 527-28. . . . We have no jurisdiction,
       however, in an interlocutory appeal to review a
       District Court's determination that there is
       sufficient record evidence to support a set of facts
       under which there would be no immunity.

Id. at 415 (internal citation omitted).

       This court exercises plenary review of questions of law
appealed pursuant to the collateral order doctrine. Id. In
reviewing a denial of summary judgment, this court must view
the facts in the light most favorable to the nonmoving party,
appellant Barton. See, e.g., Kopec v. Tate, 361 F.3d 772, 775
(3d Cir. 2004).

        Barton argues that we do not have jurisdiction because
the District Court denied Curtis’ motion for summary judgment
on the ground that there is a genuine dispute as to material facts.
He relies in part on the Supreme Court’s decision in Johnson v.
Jones, where the Court limited “interlocutory appeals of
‘qualified immunity’ matters to cases presenting more abstract
issues of law.” 515 U.S. at 317 (emphasis added). In Johnson,
the police officer defendants moved for summary judgment
claiming that they were not present at and were not participating
in the beating of the plaintiff; and asserting qualified immunity.
Id. at 307. The District Court denied summary judgment,
holding that there was “sufficient circumstantial evidence
supporting [the plaintiff’s] theory of the case.” Id. (internal
quotation marks omitted). The Court of Appeals for the Seventh
Circuit held that it did not have jurisdiction over the
interlocutory appeal and the Supreme Court affirmed its
dismissal of the appeal. Id. at 308, 320. The Johnson Court
balanced the competing considerations that underlie questions of
finality. Id. at 315. It observed that determining whether a
genuine issue of material fact exists is the sort of question that a
trial judge confronts regularly and that “appellate judges enjoy
no comparative expertise in such matters.” Id. at 316. The
Court also noted that determining whether a record demonstrates
a “genuine” issue of fact at trial “can consume inordinate

                                  5
amounts of appellate time.” Id.

        In Johnson, the Court quoted from Mitchell with respect
to the separable requirement of Cohen, stating:

       it follows from the recognition that qualified
       immunity is in part an entitlement not to be forced
       to litigate the consequences of official conduct that
       a claim of immunity is conceptually distinct from
       the merits of the plaintiff’s claim that his rights
       have been violated.

Johnson, 515 U.S. at 312 (emphasis omitted) (quoting Mitchell,
472 U.S. at 527-28).

        Qualified immunity protects government officials “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). The Supreme Court has
set forth a two-step objective reasonableness test to determine
whether qualified immunity should be granted. Saucier v. Katz,
533 U.S. 194, 200-01 (2001); see also Kopec, 361 F.3d at 776.
“First, the court must consider whether the facts alleged, taken in
the light most favorable to the plaintiff, show that the officer's
conduct violated a constitutional right.” Kopec, 361 F.3d at 776
(citing Saucier, 533 U.S. at 201). If “‘a violation could be made
out on a favorable view of the parties’ submissions,’” the court
must determine “‘whether the right was clearly established.’”
Id. (quoting Saucier, 533 U.S. at 201). “‘The relevant
dispositive inquiry’ in making this determination is ‘whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Id. (quoting Saucier,
533 U.S. at 202).

        Reasonableness under the second factor is an issue of law
for the district court to determine; however, if there are facts
material to the determination of reasonableness in dispute, then
that issue of fact should be decided by the jury. Sharrar v.
Felsing, 128 F.3d 810, 826-28, 832 (3d Cir. 1997) (citing Hunter
v. Bryant, 502 U.S. 224 (1991)) (holding, on appeal from a final

                                  6
judgment, that a jury must decide whether “relevant historical
facts” are disputed and, if so, determine whether defendants are
entitled to qualified immunity).

                                IV.

        Following these precedents, the District Court in this case
approached the issue of qualified immunity as a two-part test, as
set forth in Saucier. First, the Court heard arguments on
whether, taking the facts in the light most favorable to Barton,
Curtis violated Barton’s Fourth Amendment right to be free from
arrest without probable cause. The parties do not dispute that
this right is clearly established.

        As to the second step, Barton’s complaint alleged that
Curtis’ affidavit, which was the basis for the Territorial Court’s
issuance of a warrant for Barton’s arrest, contained evidence that
Curtis knew to be false “and nevertheless deliberately made
them or he acted with reckless disregard for the truth.” Barton’s
Compl. at 2. In support of this claim, Barton argues that Curtis
stated in his affidavit “[t]hat . . . Barton in an effort to deceive
the court, withheld the fact that this matter of custody had been
brought before a Florida Court,” App. at 89, even though, before
submitting that affidavit, Curtis had reviewed the transcript of
the custody hearing, at which Barton had in fact disclosed the
prior proceedings in Florida and North Carolina. Moreover,
Barton supports his allegation that Curtis’ actions were either
“knowing” or “reckless” by submitting evidence that there was
no prior award of custody to Mrs. Barton, as the Florida “order”
on which Curtis relied was by a master and had never been
entered by Judge Carney, the Florida judge.

        We do not decide at this preliminary stage of the
proceedings whether Curtis’ interpretation of the facts
discovered in his investigation of Barton, as he presented them
in his affidavit in support of probable cause, was objectively
reasonable or unreasonable. The District Court next needed to
determine, as a matter of law, whether “it would be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted.” Kopec, 361 F.3d at 776. During the motion
hearing on the summary judgment, the District Court noted that,

                                 7
taking the facts in the light most favorable to the plaintiff, a
determination of whether or not Curtis acted recklessly or
knowingly would be more appropriately one for a jury.

       We note that the issue as to whether Curtis knowingly or
recklessly presented false information to the Territorial Court is
the basis of Barton’s claim that Curtis violated 42 U.S.C. § 1983.
Thus, the disputed issue of fact is inseparable from the legal
question of qualified immunity. See Johnson, 515 U.S. at 312.

       Because the District Court denied summary judgment on
the ground that there is a material issue of fact to be determined
by the jury, the order falls within Johnson and is one of the
limited instances in which this Court does not have jurisdiction
to hear an appeal of summary judgment in a 42 U.S.C. § 1983
cause of action where the defendant is asserting qualified
immunity.2 We will therefore dismiss this appeal for lack of
jurisdiction.3


       2
          See 19 Moore’s Federal Practice § 202.07[2][b][iii][A]
(Matthew Bender 3d ed.) (“[T]he district court might have denied
a defendant’s motion for summary judgment because of the
existence of a genuine factual dispute about what occurred. For
example, under the plaintiff’s version of the facts immunity might
be inapplicable, while under the defendant’s version of the facts
immunity would apply. In such a case, the court of appeals cannot
decide the immunity issue as a matter of law, since the applicability
of the defense will depend on what facts are found after a trial. In
effect, an interlocutory appeal would require the circuit court to
consider an issue that is not separate from the factual merits of the
case.”).
       3
          Curtis argues that the § 1983 claim against him must be
dismissed because he was acting in his official capacity and
therefore the action cannot be maintained against him. Barton’s
suit names Curtis in his individual capacity. The Supreme Court
has held that “state officials, sued in their individual capacities, are
‘persons’ within the meaning of § 1983.” Hafer v. Melo, 502 U.S.
21, 31 (1991). The District Court did not reach this issue and
because it does not present an issue of qualified immunity

                                   8
appropriate for interlocutory appeal, we will not address it.

                                 9
