The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0442n.06
No. 08-3037
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 30, 2009
LEONARD GREEN, Clerk
JOSHUA L. WRIGHT )
)
Plaintiff-Appellee, )
)
v. )
) ON APPEAL FROM THE UNITED
SIMON L. LEIS JR., Hamilton County ) STATES DISTRICT COURT FOR THE
Sheriff; Deputy ADAM WONG; Sgt. ) SOUTHERN DISTRICT OF OHIO
MICHELLE MOORE; Deputy CHRIS )
WINGATE; Deputy ROBERT WAGNER; )
Deputy DOUGLAS ALLEN, )
)
Defendants-Appellants. )
Before: SILER, COOK, and GRIFFIN, Circuit Judges.
PER CURIAM. In this 42 U.S.C. § 1983 action, Joshua L. Wright alleges that the
defendants—employees of the Hamilton County Jail—violated his constitutional right to be free
from excessive force. The defendants bring this interlocutory appeal from the district court’s order
denying their motions to dismiss and for a judgment on the pleadings. They challenge the district
court’s determination that: (1) jurisdiction existed regardless of Wright’s alleged failure to exhaust
his administrative remedies, and (2) qualified immunity does not shield them from suit.
Our jurisdiction limits us to reviewing the district court’s order denying qualified immunity,
and we affirm.
No. 08-3037
Wright v. Leis
I.
The dispute in this case centers on the sufficiency of Wright’s amended complaint that
alleges that Hamilton County jailers assaulted him. According to Wright, the conflict arose from
Deputy Sheriff Douglas Allen’s impatience with Wright’s stopping to shake hands with another
inmate as the deputy was escorting him through the jail. Deputy Allen reacted by jerking Wright
through a doorway, causing Wright to spill a bag containing his belongings. When Deputy Allen
and Sergeant Michelle Moore ordered Wright to collect his property, Wright responded with
profanity. Moore then led Wright to a cell, tasing him twice along the way. Once in the cell, other
guards joined the tussle, repeatedly “beat[ing] and tas[ing]” Wright “without justification.” These
guards included Deputies Adam Wong, Chris Wingate, Robert Wagner, and five unknown deputies.
The amended complaint goes on to allege that Sheriff Simon L. Leis and the Hamilton County Board
of Commissioners caused the excessive force violation by failing to train the guards. Finally, the
amended complaint includes a state law assault-and-battery count, and a civil conspiracy count.
The defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of jurisdiction because Wright allegedly failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”). The defendants also moved
under Rule 12(c) for a judgment on the pleadings, claiming qualified immunity. The district court
dismissed Wright’s civil conspiracy claim (a determination not appealed), but rejected the
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Wright v. Leis
defendants’ claimed right to dismissal on all other claims. The parties agreed to dismiss the
Hamilton County Board of Commissioners. The remaining defendants timely appealed.
II.
We begin by addressing Wright’s claim that we lack jurisdiction over this appeal. As for
defendants’ exhaustion challenge, Wright is correct. Section 1291 of Title 28 limits this court’s
jurisdiction to final judgments, United States v. Any & All Radio Station Transmission Equip., 204
F.3d 658, 668 (6th Cir. 2000), and “[t]he denial of a motion to dismiss on the grounds of failure to
exhaust administrative remedies is not, by any definition, a final judgment that ends the litigation
on the merits,” M.A. ex rel. E.S. v. State-Operated Sch. Dist. of Newark, 344 F.3d 335, 343 (3d Cir.
2003) (addressing exhaustion in a suit under the Individuals with Disabilities Act). Although
exceptions to 28 U.S.C. § 1291’s general rule exist, none apply here.
The defendants misread Woodford v. Ngo, 548 U.S. 81 (2006). Although Woodford held that
the PLRA requires exhaustion of administrative remedies, id. at 93, that case does not alter the
straightforward rule of 28 U.S.C. § 1291. Woodford involved the appeal of a district court’s decision
to grant a defendant’s motion to dismiss. Id. at 87. The district court here denied the motion to
dismiss. While granting a motion to dismiss is a final judgment, an order denying dismissal is not.
We therefore lack jurisdiction to address defendants’ exhaustion challenge.
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Wright v. Leis
In contrast to the district court’s exhaustion order, its denial of qualified immunity, while not
a final order, presents an appealable issue. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The
Supreme Court recently reaffirmed that, “[p]rovided it ‘turns on an issue of law,’” “[a] district court
decision denying a Government officer’s claim of qualified immunity can fall within the narrow
class of appealable orders despite ‘the absence of a final judgment.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1945–46 (2009) (quoting Mitchell, 472 U.S. at 530); see also Barnes v. Wright, 449 F.3d 709,
714 n.2 (6th Cir. 2006).
Wright contends that the defendants do not pose a purely legal question because they rely on
disputed facts. Admittedly, the defendants’ brief references facts not supported by the amended
complaint. But the defendants concede that the panel should accept the factual aspects of the
amended complaint as true. This appeal thus presents this legal question: Does Wright’s amended
complaint withstand a motion to dismiss? See Estate of Carter v. Detroit, 408 F.3d 305, 310 (6th
Cir. 2005) (“If . . . aside from the impermissible arguments regarding disputes of fact, the defendant
also raises the purely legal question of whether the facts alleged . . . support a claim of violation of
clearly established law, then there is an issue over which this court has jurisdiction.”) (internal
citations and quotations marks omitted); see also Ashcroft, 129 S. Ct. at 1947 (“determining whether
respondent’s complaint has the heft to state a claim is a task well within an appellate court’s core
competency.”) (internal quotation marks omitted).
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Wright v. Leis
III.
In analyzing qualified immunity, “[t]his court has consistently held that damage claims
against government officials arising from alleged violations of constitutional rights must allege, with
particularity, facts that demonstrate what each defendant did to violate the asserted constitutional
right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (emphasis added); see also Scicluna
v. Wells, 345 F.3d 441, 445 (6th Cir. 2003) (to avoid qualified immunity dismissal, the plaintiff must
“allege[] sufficient facts, and support[] the allegations by sufficient evidence, to indicate that what
the official allegedly did was objectively unreasonable in light of the clearly established
constitutional rights.”).
Wright’s amended complaint asserting excessive-force allegations against these county
employees withstands this court’s required scrutiny. The defendants contend that Wright fails
Lanman’s particularity requirement by “lumping” defendants Allen, Moore, Wong, Wingate, and
Wagner together with “general and conclusory allegations.” We think not. Lanman’s particularity
requirement demands only that, for each defendant, the plaintiff allege something more specific than
a general Fourth or Fourteenth Amendment claim. The complaint goes beyond generalities and
supplies details about the alleged violation. Paragraph eleven explains where and how the alleged
violation occurred:
En route to the cell, Sergeant Moore tased Plaintiff on two occasions without
justification. Upon reaching the cell, the Defendants Adam Wong, Michelle Moore,
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No. 08-3037
Wright v. Leis
Douglas Allen, Chris Wingate, Robert Wagner, and John Does 1-5 physically beat
and tased Plaintiff repeatedly.
Paragraph fourteen further relates that these defendants “unjustifiably physically assault[ed] Wright
in the Hamilton County Justice Center.” These allegations suffice to avoid dismissal at the pleading
stage.
Two interests animate Lanman’s pleading requirement: (1) notifying defendants of the claim,
cf. Fed. R. Civ. P. 8(a) (embracing notice pleading); and (2) conserving resources by requiring the
pleading of facts sufficient to allow a qualified immunity determination at the pleading stage, see
Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). Wright’s amended complaint
sufficiently specifies facts to satisfy both interests.
As for whether Wright sufficiently pleaded a violation by Sheriff Leis, the defendants offer
a two sentence argument, essentially claiming that the amended complaint does not allege that “Leis
had any personal contact with Wright . . . .” That, however, misses the point. Wright asserts that
Sheriff Leis failed to train his subordinates, making it irrelevant whether Leis had physical contact
with Wright. The defendants, by failing to adequately address the issue, waive any objection to the
sufficiency of Wright’s failure-to-train claim. See Morris v. Family Dollar Stores of Ohio, Inc., No.
07-3417, 2009 WL 899894, *8 n. 11. (6th Cir. Mar. 31, 2009) (“failure to raise an argument in . . .
appellate brief constitutes a waiver of the argument on appeal.”) (quoting Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005)).
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No. 08-3037
Wright v. Leis
IV.
We affirm the district court’s order denying qualified immunity.
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