“‘Four- wheeler’ is a term commonly used to refer to all-terrain recreational vehicles (also known as ATVs).”
How later courts described this case
- “‘Four- wheeler’ is a term commonly used to refer to all-terrain recreational vehicles (also known as ATVs).”
Written by the judges who cited it.
The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0112n.06
No. 12-5713
FILED
UNITED STATES COURT OF APPEALS Jan 31, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
JUDY GANTZ, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
WAYNE COUNTY SHERIFF’S OFFICE, et al., )
)
Defendants, )
)
and )
)
)
ROBERT ELLIS, Deputy Sheriff of Wayne County, )
)
Defendant-Appellant. )
)
BEFORE: BOGGS and WHITE, Circuit Judges, and McCALLA, District Judge.*
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Deputy Sheriff Robert Ellis1
appeals the district court’s denial of his motion seeking the qualified-immunity-based dismissal of
Plaintiff-Appellee Judy Gantz’s claims alleging false arrest, excessive force, state and federal
malicious prosecution, and assault and battery. Because Ellis does not concede Gantz’s version of
*
The Honorable Jon Phipps McCalla, Chief United States District Judge for the Western
District of Tennessee, sitting by designation.
1
Defendants Sheriff Charles Boston and the Wayne County Sheriff’s Office were dismissed
from this action and are not parties to this appeal.
No. 12-5713
Gantz v. Ellis
events, as he must in this interlocutory appeal, and raises no purely legal issues, we DISMISS the
appeal for lack of jurisdiction, and REMAND to the district court for continuation of the
proceedings.
I.
On July 11, 2009, Judy Gantz (“Gantz”) called the police after her ex-husband, George
Young, refused to leave her house. Local police responded to Gantz’s call and informed her that
because Young claimed to live at her house, they could not remove him from the residence and she
would have to file an eviction notice. The police left and Young remained at Gantz’s house. Young
stayed in a separate room for a while, but later that day broke into Gantz’s garage and began driving
Gantz’s four-wheeler2 up and down the street. Gantz called the police a second time and reported
that Young was attempting to take her four-wheeler. Gantz went across the street to a neighbor’s
house to wait for the police to arrive. Sheriff’s Deputy Robert Ellis (“Ellis”) responded to the call
at approximately 11:30 p.m. When Gantz saw Ellis pull up in front of her house, she left her
neighbor’s house to talk with him. At this point, the parties’ accounts diverge.
A. Facts according to Gantz
Ellis told Gantz that he would speak with Young, who was sitting on a short wall on her
property. Gantz stood across the street while Young spoke with Ellis, but when she saw Young
backing her four-wheeler out of the driveway she walked across the street and confronted him by
2
“Four-wheeler” is a term commonly used to refer to all-terrain recreational vehicles (also
known as ATVs).
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No. 12-5713
Gantz v. Ellis
telling him in a calm voice, “George you know that’s not your four-wheeler.” Young did not reply
and continued backing out of Gantz’s driveway. At this point, Ellis ran at her saying, “You may talk
to him that way but you’re not going to talk to me that way.” Ellis was red in the face, spit while he
was talking, and appeared angry. Ellis grabbed Gantz by the arms, picked her up off the ground, and
shook her. Gantz lost control of her bladder. Ellis told her that she was going to jail. Gantz asked
what she had done, but Ellis did not reply and instead slammed her against the trunk of his police
vehicle. He pushed her left arm behind her back and lifted her up one or two times before shoving
her into his car. As he shoved her in, he reached down and began unbuttoning something on his
police belt. Gantz believed Ellis was going to shoot her. She did not struggle at any time during the
incident, and Ellis never issued any orders before he grabbed her. As a result of the arrest, Gantz’s
neck and ribs were injured and she suffered bruising and scratching on her arms.
During the booking process, Ellis told Gantz that she was being booked for disorderly
conduct. Gantz replied “whatever,” and Ellis responded, “No it ain’t whatever, now I’m going to
book you with resisting arrest too[.]” Gantz did not request to see a doctor at the jail. She was
released the following morning on her own recognizance. The county attorney dismissed all charges
against Gantz after her second court appearance.
B. Facts according to Ellis
Both before the district court and on appeal, Ellis disputes Gantz’s version of events. Ellis
maintains that he directed Gantz to stay at her neighbor’s house while he talked to Young. After
talking to Ellis, Young agreed to leave for the night. Young told Ellis that the four-wheeler belonged
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No. 12-5713
Gantz v. Ellis
to him and that he would load it into his truck. Ellis noticed that Young used two wires to start the
four-wheeler instead of a key. When Young began backing up the four-wheeler, Gantz left her
neighbor’s house and started arguing with Young about who owned the four-wheeler. Ellis told
Gantz to return to her neighbor’s house, and told Young to stay at the front of Gantz’s house. Gantz
responded that it was her property and that she had done nothing wrong. Ellis told her that he could
not have her arguing with Young, and that she needed to return to her neighbor’s house. Young and
Gantz continued arguing, and Ellis told Gantz again that if she did not go back to her neighbor’s
house, he would take her to jail. She refused and repeated that she had done nothing wrong and that
it was her property. Ellis told Gantz she was under arrest and, when he grabbed her right arm, she
spun away from him. He executed a “wrist technique” to bring her under control and began walking
her toward his car. Gantz repeated that she had done nothing wrong, and refused to sit down in his
car. Ellis used his right knee to raise her left thigh, take away her balance, and push her into the car.
Gantz’s feet remained outside the car, and when Ellis told her to move her feet inside, she refused.
Ellis reached for his mace, began shaking it, and Gantz put her feet in the car. Ellis denies shaking
Gantz or picking her up off the ground, and further denies that the county attorney ever talked to him
about dismissing the charges against Gantz, claiming that he did not know what happened to the
case.
II.
Gantz filed a complaint in the United States District Court for the Eastern District of
Kentucky against the Wayne County Sheriff’s Office, Sheriff Charles Boston, and Deputy Sheriff
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No. 12-5713
Gantz v. Ellis
Ellis, in their official and individual capacities, asserting federal claims, under 42 U.S.C. § 1983, of
false arrest, excessive force, and malicious prosecution against Boston and Ellis, and failure to train
against Boston and the Wayne County Sheriff’s Office, and state-law claims of intentional and/or
negligent infliction of emotional distress, assault and battery, negligence and gross negligence, and
malicious prosecution against Boston and Ellis. Defendants pleaded qualified immunity as an
affirmative defense and moved for summary judgment.
The district court granted Boston summary judgment on qualified-immunity grounds on all
claims brought against him in his individual capacity, and dismissed all federal claims against
Boston and Ellis in their official capacities. The court denied Ellis summary judgment on Gantz’s
claims of false arrest, excessive force, malicious prosecution and assault and battery noting:
The critical factual dispute is whether Gantz disregarded an order allegedly given by
Ellis. Ellis claims his order to remain near [her neighbor]’s property was
disregarded; Gantz claims no order was given before she was restrained. As a result,
the Court cannot rule that probable cause was present, that force was justified, or that
Ellis did not make false statements on Gantz’s citation.
The court granted summary judgment to Wayne County on Gantz’s federal claim of failure to train,
and granted Ellis summary judgment on Gantz’s state claims of intentional infliction of emotional
distress, and negligence. Ellis timely filed this interlocutory appeal.
III.
To state a claim under § 1983, a plaintiff must set forth facts that establish the deprivation
of a right guaranteed by the Constitution or laws of the United States that was caused by a person
acting under the color of state law. Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir.
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No. 12-5713
Gantz v. Ellis
2009). Qualified immunity shields government officials “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“Determining whether government officials are entitled to qualified immunity generally requires two
inquiries: 1) whether, viewing the facts in the light most favorable to the plaintiff, the plaintiff has
shown that a constitutional violation occurred; and 2) whether the right was clearly established at
the time of the violation.” Harris v. City of Circleville, 583 F.3d 356, 365 (6th Cir. 2009).
“A district court’s denial of qualified immunity is a final decision for purposes of [28 U.S.C.]
§ 1291 only to the extent that it turns on an issue of law.” Id. at 364. “[F]or an interlocutory appeal
to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as
alleged by the plaintiff and discuss only the legal issues raised by the case.” Shehee v. Luttrell, 199
F.3d 295, 299 (6th Cir. 1999). Thus, this court accepts all of Gantz’s factual allegations as true for
the purposes of this appeal, and views all facts and reasonable inferences in the light most favorable
to her. Scicluna v. Wells, 345 F.3d 441, 444–45 (6th Cir. 2003). We review the denial of qualified
immunity de novo. Id. at 444.
Although Ellis mentions Gantz’s version of events, he repeatedly inserts his own version of
events to support that Gantz’s behavior gave him probable cause to arrest her and that the force he
used was objectively reasonable.3 Ellis repeats this interpretation of events throughout his brief.
3
For example, Ellis argues:
[T]he evidence shows that [Ellis] was merely responding to a hostile situation in the
middle of the night, where one officer had already been deployed to the scene earlier
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No. 12-5713
Gantz v. Ellis
(Def.’s Br. at 19, 21, 23, 25, 29–30, 36, 39.) Ellis asserts that Gantz’s testimony is “both incredible
and unreliable.” (Id. at 25.)4
“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.”
Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011). Ellis does not concede the facts in the light
most favorable to Gantz and instead argues his interpretation of events. These arguments are not
properly before this court and we lack jurisdiction to consider them. See McKenna v. City of Royal
Oak, 469 F.3d 559, 561–62 (6th Cir. 2006).
Accordingly, we DISMISS this appeal and REMAND for continuation of the proceedings.
in the day. Ellis gave clear instructions to the plaintiff and advised her that if she did
not cease and desist, she would be arrested. Upon being placed under arrest, the
plaintiff fought and Ellis subdued her with as little force as possible.
(Def.’s Br. at 15.)
4
Ellis’s reply brief changes course and argues that even crediting Gantz’s version of events,
Ellis knew he was responding to a volatile situation in which Gantz claimed that Young had
damaged her property and was attempting to steal her four-wheeler. (Def.’s Reply Br. at 6.) Ellis
argues that Gantz never informed him that he was hurting her and that she suffered only minor
bruising as a result of the incident. (Id. at 7.) Arguments first raised in a reply brief are not properly
before this panel. See United States v. Lopez-Medina, 461 F.3d 724, 743 n.4 (6th Cir. 2006).
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