Thompson v. Grida

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DARRYL THOMPSON,

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Plaintiff-Appellee,

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No. 09-4369

v.

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Defendant, -

MICHAEL GRIDA,

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DAVID ROOSE; STEVE SHUBURT; OFFICER -

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Defendants-Appellants. -

OLSZEWSKI; OFFICER KELLY,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 08-00271—Solomon Oliver, Jr., Chief District Judge.

Argued: March 8, 2011

Decided and Filed: September 8, 2011

Before: McKEAGUE and STRANCH, Circuit Judges; MAYS, District Judge.*

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COUNSEL

ARGUED: Patrick Gallagher, ALLAN & GALLAGHER, Cleveland, Ohio, for

Appellants. Michael J. Cheselka, Jr., Cleveland, Ohio, for Appellee. ON BRIEF:

Patrick Gallagher, ALLAN & GALLAGHER, Cleveland, Ohio, for Appellants. Michael

J. Cheselka, Jr., Cleveland, Ohio, for Appellee.

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The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of

Tennessee, sitting by designation.

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OPINION

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JANE B. STRANCH, Circuit Judge. In this civil-rights action, Darryl Thompson

alleges he was arrested without probable cause and the arresting officers used excessive

force. Police officers Roose, Shuburt, Olszewski, and Kelly appeal the district court’s

denial of their motion for summary judgment on qualified immunity grounds. Because

the officers rely entirely on disputed facts in their appeal, we DISMISS the appeal for

lack of jurisdiction and REMAND for trial.

I. BACKGROUND

Thompson alleges the following occurred in February 2007. While he was

preparing to go to work, he and his wife learned from neighborhood children of a

problem on the school bus involving Maya, their ten year old daughter. Mr. and Mrs.

Thompson went immediately to the bus stop. As they approached, they saw police cars

and a school bus; they could not see their daughter, but they saw their 15 year old son

being held against a police car. They told one of the officers they were the parents of

the girl involved in the altercation and asked where their daughter was. The officer only

responded by shouting, “Get back. Get back. Get back. Get back,” and they complied.

Officer Shuburt then approached Mrs. Thomspon. After hearing his wife yell

“don’t hit me, don’t put your hands on me” to Shuburt, Thompson stepped between his

wife and Officer Shuburt. Thompson faced Shuburt, intending to defuse the situation.

He asked if Shuburt put his hands on Mrs. Thompson, to which Shuburt replied, “No,

I shoved her.” Thompson told his wife to return to their car. When Thompson turned

back to face Shuburt, the officer grabbed him and began to kick him on his right side and

groin. Other officers joined in and sprayed his face with pepper spray. After the first

spray, the officers hit Thompson across his face, knocked off his glasses and shot his

eyes with pepper spray again. Thompson states that he did not resist the officers and

complied with all their requests.

No. 09-4369 Thompson v. Grida, et al. Page 3

The officers tell a different story. They claim Thompson and his wife yelled

racial expletives at the officers and disregarded their orders at the scene. The officers

contend Thompson was physically aggressive and initiated the altercation by attempting

to punch Officer Shuburt. Contrary to Thompson’s testimony, the officers argue they

kicked Thompson and sprayed him with pepper spray in an attempt to gain control of

him, because Thompson continually resisted the officers and refused commands to roll

onto his stomach.

Thompson was ultimately arrested and charged with assault on a police officer.

He was found not guilty by a jury before the Cuyahoga County Common Pleas Court.

On February 4, 2008, Thompson filed this suit asserting a claim under 42 U.S.C. § 1983

against the five police officers. The complaint alleged the officers arrested Thompson

without probable cause and used excessive force. After taking Mr. and Mrs.

Thompson’s depositions, the defendants moved for summary judgment on the grounds

of qualified immunity.

The district court found substantial disparities between the facts as stated by

Thompson and the officers. Finding that there were genuine issues of material fact as

to whether the officers had probable cause to arrest Thompson and whether they used

excessive force, the court denied summary judgment on the basis of qualified immunity.

The officers appeal.

II. DISCUSSION

A. Jurisdiction

An order denying qualified immunity, to the extent it turns on a question of law,

is an immediately appealable collateral order. Mitchell v. Forsyth, 472 U.S. 511, 530

(1985). However, “[w]hen the District Court denies qualified immunity to government

officials on summary judgment, our jurisdiction to hear an interlocutory appeal of that

ruling is narrow.” Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998).

A defendant challenging a denial of summary judgment on qualified immunity

grounds must be “willing to concede the most favorable view of the facts to the plaintiff

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for purposes of the appeal.” Id. at 563. Where the defendant does not dispute the facts,

the issue is purely legal: whether the facts, viewed in the light most favorable to the

plaintiff, entitle the defendant to qualified immunity as a matter of law. Grawey v.

Drury, 567 F.3d 302, 310 (6th Cir. 2009). However, where the defendant disputes the

facts on appeal, the appeal involves the ordinary issue of the existence, or non-existence,

of a triable issue of fact. Johnson v. Jones, 515 U.S. 304, 313 (1995). In that situation,

the district court’s determination that the summary judgment record raises a genuine

issue of fact concerning the officials’ involvement is not an immediately appealable final

decision and this Court lacks jurisdiction. Id.; Grawey, 567 F.3d at 310.

Supreme Court jurisprudence requires us to assess qualified immunity within the

specific factual circumstances at hand. See, e.g., Saucier v. Katz, 533 U.S. 194, 202

(2001) (“The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.”). This task is impossible when the dispute on

appeal is factual in nature. When the legal arguments advanced rely entirely on a

defendant’s own disputed version of the facts, the appeal boils down to issues of fact and

credibility determinations that we cannot make. See Berryman, 150 F.3d at 564.

B. Factual Disputes on Appeal

The officers contend that they construe the facts in the light most favorable to

Thompson and that there are no disputed issues of material fact. Their argument belies

their assertion. The officers argue they are entitled to qualified immunity, citing case

law they deem analogous to the facts of this case as they have stated them.

On the probable cause claim, the officers argue that the circumstances, as they

present them, suggest a reasonable officer at the scene would fear an impending assault

from Thompson. Appellants cite a number of cases to support their qualified immunity

argument that the right not to be arrested in the circumstances presented in this case is

not clearly established. However, these cases are only analogous if this Court accepts

the version of the facts proposed by the officers. See, e.g., Lyons v. City of Xenia, 417

F.3d 565 (6th Cir. 2005) (analogous only assuming Thompson acted in a threatening

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manner to Shuburt); Abdul-Khaliq v. City of Newark, 275 F. App’x 517 (6th Cir. 2008)

(analogous only assuming Thompson acted aggressively by yelling and cursing at the

officers); Palshook v. Jarrett, 120 F. Supp. 2d 641 (N.D. Ohio 2000) (analogous only

if this Court assumes Thompson had a hostile attitude).

Likewise, the officers argue Thompson’s excessive force claim does not state a

constitutional violation because, given the circumstances as they present them, the force

the officers used was reasonable. Once again, the cases cited are analogous only if this

Court accepts the officers’ version of the facts. See, e.g., Goodrich v. Everett, 193 F.

App’x 551 (6th Cir. 2006) (analogous only assuming Thompson’s description of the

kicks to his groin, the punches, and the two sprays of mace to his face were ambiguous);

Fuller v. Cuyahoga Metro. Hous. Auth., No. 1:06-CV-2093, 2008 WL 339464 (N.D.

Ohio Feb. 6, 2008) (analogous only assuming Thompson was argumentative,

uncooperative, struggled, and resisted the officers).

The issue on appeal is not whether the officers were entitled to qualified

immunity under the officers’ version of the facts; the issue on appeal is whether

Thompson contests that version of the facts. He does. The officers assert that

Thompson disregarded commands to “Get Back,” Mrs. Thompson engaged in loud,

threatening, and confrontational behavior to Officer Shuburt, and Thompson resisted the

officers and refused their commands to roll over. Thompson’s pleadings and the

depositions dispute these facts and instead claim that Thompson did not resist the

officers and obeyed their requests. Thompson successfully disputed, before a jury, any

claim that he had assaulted an officer.

The officers have failed to satisfy the requirement that they concede the most

favorable view of the facts to Thompson. This is precisely the sort of factual dispute

over which this Court lacks jurisdiction. See Berryman, 150 F.3d at 564–65 (“Once a

defendant’s argument drifts from purely legal into the factual realm and begins

contesting what really happened, our jurisdiction ends and the case should proceed to

trial.”). Mere conclusory statements that the officers construe the facts in the light most

favorable to the plaintiff cannot confer jurisdiction upon this Court. See id. (“We have

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learned by experience that defendants sometimes attempt simply to protract the litigation

and manipulate the fact-law distinction . . . to create the appearance of jurisdiction.”).

Disputes of fact clearly exist in this case and deprive us of jurisdiction.

III. CONCLUSION

The officers’ arguments for qualified immunity all hinge on acceptance of their

version of the facts. Thompson disputes those facts. Because genuine issues of material

fact remain, there is no jurisdiction over this appeal. We, therefore, DISMISS for lack

of jurisdiction and REMAND to the district court to proceed to trial.