The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0746n.06
No. 09-3385
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Nov 20, 2009
LEONARD GREEN, Clerk
VAUGHN McCLINE, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DAVID ROOSE, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
)
)
BEFORE: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges
MERRITT, Circuit Judge. The parties in this case have waived oral argument and
submitted the case on the briefs. It is an interlocutory appeal by the defendant Roose, a police
officer, who disagrees with the district court’s ruling denying his defense of qualified immunity. The
appeal is dismissed for the reason that this court lacks appellate jurisdiction over the interlocutory
appeal under Johnson v. Jones, 515 U.S. 304, 319-20 (1995), in which the Court held that “a
defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s
summary judgment order insofar as that order determines whether or not the pretrial record sets forth
a ‘genuine’ issue of fact for trial.” The Court stated that “an interlocutory appeal concerning this
kind of issue in a sense makes unwise use of appellate court’s time, by forcing them to decide in the
context of a less developed record, an issue very similar to one they may well decide anyway later,
No. 09-3385
McCline v. Roose
on a record that will permit a better decision.” Id. at 317. Here in a comprehensive, well-reasoned
opinion, Judge Wells in section III B recites the disputed facts concerning the alleged use of
excessive force. 2009 WL 585844 (March 3, 2009). Those same disputed facts remain disputed on
appeal. The defendant Roose does not agree that the factual allegations of the plaintiff regarding the
use of excessive force should govern the question of qualified immunity on appeal or the question
of whether his conduct violates clearly established constitutional rights. He continues to insist on
the facts that the District Court concluded were in dispute.
Thus, Roose’s case does not fall within the category of cases open to interlocutory appeal
based on qualified immunity.
Accordingly, the appeal is dismissed for lack of appellate jurisdiction, which returns the case
to the District Court for further proceedings.
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