Sorey ex rel. Sorey v. Kellett

849 F.2d 960, 1988 WL 66435
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 18, 1988
DocketNo. 87-4856
StatusPublished
Cited by1 cases

This text of 849 F.2d 960 (Sorey ex rel. Sorey v. Kellett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sorey ex rel. Sorey v. Kellett, 849 F.2d 960, 1988 WL 66435 (5th Cir. 1988).

Opinion

THORNBERRY, Circuit Judge:

This is an appeal from the district court’s pretrial order denying a claim of qualified immunity to causes of action based on Mississippi law. We hold that this court has jurisdiction of the appeal, and we reverse.

I.

Eric Sorey played football under an athletic scholarship at the University of Southern Mississippi (USM). One day in early August 1986, Sorey collapsed on the football practice field. He was taken to the training room complaining of nausea and severe stomach cramps. His condition did not improve, and two hours later he was taken to the USM clinic. Sorey remained at the clinic for four or five hours, during [961]*961which time he was examined by the team physician, Dr. Boyd Kellett. When Sorey failed to improve, a fellow student took him to Methodist Hospital, but he died on the way.

Eric Sorey’s mother, Elnora Sorey, filed this action in district court alleging claims under 42 U.S.C. § 1983 and state tort and contract law. She named as defendants USM; the members of Mississippi’s Board of Trustees of the State Institutions of Higher Learning; USM’s head football coach, Jim Carmody; USM’s athletic trainer, Earnest Harrington; and Dr. Kellett. The basis for Sorey’s federal and state claims included alleged negligence by Harrington and Kellett, violation of a nondele-gable duty to take care of football players by Coach Carmody, and failure to provide sufficient funds to hire competent employees by the Board of Trustees.

All defendants were named in their official capacities, and the noninstitutional defendants were also named in their individual capacities. The district court eventually dismissed the federal claims against all defendants, and the state claims against all defendants except Carmody, Harrington, and Kellett in their individual capacities. The district court denied motions by Car-mody, Harrington, and Kellett to dismiss or for summary judgment on the basis of qualified immunity. Those defendants brought this immediate appeal of the court’s order.

II.

Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction over “final decisions” of the district courts. Ordinarily, this section precludes review of a district court’s pretrial orders until appeal from the final judgment. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), however, the Supreme Court held that some district court decisions belong to “that small class 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.” Under this “collateral order doctrine,” some decisions that otherwise would be interlocutory may be appealed as final decisions under § 1291.

The Court has held that a final pretrial order denying a claim of qualified immunity under federal law is a final decision appealable under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The Court noted that an essential characteristic of an issue appealable under the collateral order doctrine is that “unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all.” 105 S.Ct. at 2815 (quoting Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 7, 96 L.Ed. 3 (1952)). For example, the Court had previously held that a denial of absolute immunity was appealable, Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), because “the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Mitchell, 105 S.Ct. at 2815. Qualified immunity, the Court held, shared that characteristic of absolute immunity. The consequences with which the Court was concerned when it recognized qualified immunity were “not limited to liability for money damages; they also include[d] ‘the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.’ ” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982)). Qualified immunity, as a result, “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id. 105 S.Ct. at 2816.

The present case, however, is different from Mitchell because the asserted defense here is one of qualified immunity under state law. This circuit has not previously addressed whether state officials have an immediate right to appeal a denial [962]*962of qualified immunity when the immunity is claimed solely under state law. From Mitchell’s framework of analysis, however, it is clear that our decision must turn on whether the state’s doctrine of qualified immunity, like the federal doctrine, provides a true immunity from suit and not a simple defense to liability. The Sixth Circuit reached the same conclusion when it confronted this issue. In Marrical v. Detroit News, Inc., 805 F.2d 169 (6th Cir.1986) (per curiam), the court said:

[T]he right to an interlocutory appeal from the denial of a claim of absolute or qualified immunity under state law can only exist where the state has extended an underlying substantive right to the defendant official to be free from the burdens of litigation arising from acts taken in the course of his duties.

Id. at 172.

Initially, we must address Sorey’s argument that, under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we must dismiss the appeal because the Mississippi rules of procedure do not allow an appeal as a matter of right from a decision in state court denying a claim of qualified immunity. Appeal-ability under 28 U.S.C. § 1291, however, is clearly a matter of federal law; state procedural law is not directly controlling. Budinich v. Becton Dickinson & Co., — U.S.-, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding in a diversity case that federal law determines appealability under the collateral order doctrine). As a result, Mississippi’s procedural rules are relevant only for what they reveal about the state’s view on the substantive issue of whether qualified immunity is an immunity from suit or merely a defense to liability.

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Sorey v. Kellett
849 F.2d 960 (Fifth Circuit, 1988)

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