                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 09-2607


                                 PATRICK WILSON

                                           v.

                           KATE ZIELKE; PHILIP PISANI

                                      Kate Zielke,
                                                        Appellant.


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D. C. No. 2-06-cv-02450)
                       District Judge: Hon. C. Darnell Jones, II


                             Argued on February 9, 2010

             Before: SLOVITER, ROTH and TASHIMA*, Circuit Judges

                            (Opinion filed: May 28, 2010)


Michael P. Laffey, Esquire (Argued)
Holsten & Associates
One Olive Street
Media, Pennsylvania 19063

                    Counsel for Appellant Kate Zielke


       *Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
Howard D. Popper, Esquire
Alan L. Yatvin, Esquire (Argued)
Popper & Yatvin
230 South Broad Street, Suite 503
Philadelphia, PA 19102

                     Counsel for Appellee Patrick Wilson



                                      OPINION


ROTH, Circuit Judge:

       Kate Zielke appeals from the District Court’s interlocutory order denying her

qualified immunity from the First and Fourteenth Amendment claims brought by pretrial

detainee Patrick Wilson. We exercise plenary review over the denial of a motion for

summary judgment based on qualified immunity. Wright v. City of Philadelphia, 409

F.3d 595, 599 (3d Cir. 2005). We assume the parties’ familiarity with the factual and

procedural history, which we describe only as necessary to explain our decision. We will

reverse the District Court’s order in part and dismiss the remainder of Zielke’s appeal.

       In March 2005, Zielke, a case monitor for the Delaware County Bail and Pretrial

Services Unit, applied a rubber leg monitor to Wilson’s right leg pursuant to a court order

placing Wilson on house arrest. Wilson contends that he complained to Zielke on several

occasions over a ten-day period that the leg monitor was too tight, but that she responded

by threatening to put him in jail and otherwise ignored his complaints. Zielke denies that

Wilson ever complained about the leg monitor or that she threatened to put him in jail.


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On the twelfth day of Wilson’s house arrest, he went to the emergency room complaining

of leg pain caused by the monitor, and it was removed. Wilson asserts that he suffered

lacerations, swelling, and permanent nerve damage as a result of the leg monitor being

too tight.

       Determining whether a state actor is entitled to the affirmative defense of qualified

immunity generally involves two inquiries: (1) do the facts alleged show that a state actor

violated a constitutional right, and (2) was the constitutional right clearly established so

that a reasonable person would know that the conduct was unlawful? Bayer v. Monroe

County Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009) (citing Saucier v.

Katz, 533 U.S. 194, 201 (2001)). A right is clearly established if there is “sufficient

precedent at the time of the action, factually similar to the plaintiff’s allegations, to put

[the] defendant on notice that his or her conduct is constitutionally prohibited.” McKee v.

Hart, 436 F.3d 165, 171 (3d Cir. 2006) (quoting McLaughlin v. Watson, 271 F.3d 566,

572 (3d Cir. 2001)). Courts are accorded “discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan, -- U.S. --, 129 S. Ct. 808, 818

(2009).

       Wilson contends that Zielke’s threat to put him in jail after he complained about

the tightness of his leg monitor was unlawful retaliation in violation of the First

Amendment. The District Court agreed and denied Zielke’s motion for summary

judgment. Because we find that the right was not clearly established at the time in

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question, we will reverse.

       To make out a First Amendment retaliation claim predicated on 42 U.S.C. § 1983,

a plaintiff must establish the following elements: (1) he engaged in protected speech, (2)

the defendant took adverse action sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights, and (3) the adverse action was prompted by

plaintiff’s protected speech. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Some

of our sister circuits have held that verbal threats alone can support a claim for retaliation.

See Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (“[T]he mere threat of harm

can be an adverse action . . . because the threat itself can have a chilling effect.”); Burgess

v. Moore, 39 F.3d 216, 218 (8th Cir. 1994) (threat to retaliate against prisoner was

sufficient action to establish First Amendment violation). However, neither the United

States Supreme Court nor this Circuit has defined with specificity the contours of when a

threat constitutes an adverse action in the official-detainee setting. Thus, the law as it

existed at the time of this incident would not have put a reasonable person in Zielke’s

position on notice that she was violating a clearly established right. Accordingly, Zielke

is entitled to qualified immunity on Wilson’s First Amendment retaliation claim. See

McKee, 436 F.3d at 173 (defendant entitled to qualified immunity on First Amendment

retaliation claim “because of the dearth of precedent of sufficient specificity (and factual

similarity to this case)”).




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       With respect to Wilson’s Fourteenth Amendment claims,1 we are without

jurisdiction at this time to review Zielke’s qualified immunity defense because numerous

issues of material fact remain. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (a

denial of summary judgment based on qualified immunity is final and appealable only to

the extent that it turns on questions of law); Blaylock v. City of Philadelphia, 504 F.3d

405, 409 (3d Cir. 2007) (jurisdiction to review an order denying summary judgment on

qualified immunity grounds is lacking when the defendant “challenges the District

Court’s determination of which facts were sufficiently supported by evidence”).

       For the foregoing reasons, we will reverse the District Court’s denial of Zielke’s

motion for summary judgment on the First Amendment claim and dismiss the remaining

appeal.




   1
    Wilson describes his Fourteenth Amendment claims variously as one claim for
deliberate indifference to a serious medical need and one claim for cruel and unusual
punishment. Because we lack jurisdiction to review Zielke’s entitlement to qualified
immunity on either ground, we need not determine whether Wilson may assert two
distinct due process claims under the Fourteenth Amendment. In any event, the dispute
would be academic because Wilson is not entitled to multiple recoveries, even if more
than one Fourteenth Amendment claim existed.

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                                 WILSON v. ZIELKE, et al.

                                        No. 09-2607



TASHIMA, Circuit Judge, Concurring and Dissenting:


       I concur in the majority’s holding that Appellant Kate Zielke is entitled to

qualified immunity with respect to Patrick Wilson’s First Amendment claims. I must

respectfully dissent, however, from the majority’s dismissal of the remainder of Zielke’s

appeal.

       The majority dismisses Zielke’s appeal with respect to Wilson’s Fourteenth

Amendment claims based upon its observation that “numerous issues of material fact

remain.” Maj. Op. at 5. This court is not barred from reviewing the District Court’s

qualified immunity ruling, however, simply because disputed issues of fact continue to

exist. Rather, we retain jurisdiction to determine whether, accepting Wilson’s version of

the facts as true, Zielke is entitled to qualified immunity. The very case the majority

relies on to dismiss Zielke’s appeal makes this clear: “Once we accept the set of facts

that the District Court found to be sufficiently supported . . . we may review the District

Court’s conclusion that the defendants would not be immune from liability if those facts

were proved at trial.” Blaylock v. City of Phila., 504 F.3d 405, 409 (3d Cir. 2007).

       For the purposes of her summary judgment motion and her appeal, Zielke accepted

Wilson’s version of the facts as true. See Opening Brief at 1-2 (“Defendant asserted that

she is entitled to qualified immunity because the facts, as alleged by Plaintiff, do not
support a claim for a violation of clearly established law (i.e., a pure question of law).”).

Thus, Zielke does not challenge “the District Court’s determination of which facts were

sufficiently supported by evidence.” Id. at 409. Instead, Zielke contends that Wilson’s

factual assertions, even if accepted as true, do not demonstrate the violation of a clearly

established right. Because we have jurisdiction over this question of law, id. (“we may

review the District Court’s conclusion that the defendants would not be immune from

liability if those facts were proved at trial”), I believe that we are required under Blaylock

to reach the merits of this portion of Zielke’s appeal, rather than to dismiss for lack of

jurisdiction.




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