# Carolyn Comstock v. Norris McCrary v. S. Thyagarajan and David Howell > Court of Appeals for the Sixth Circuit · December 12, 2001 · 273 F.3d 693 URL: https://www.frixlaw.com/law-library/cases/9494598 ## Case - **Full name:** Carolyn COMSTOCK, Plaintiff-Appellee, v. Norris McCRARY; V.S. Thyagarajan; And David Howell, Defendants-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** December 12, 2001 - **Citations:** 273 F.3d 693; 2001 U.S. App. LEXIS 26426; 2001 WL 1575681 - **Precedential status:** Published - **Opinion:** Dissent by O'Malley - **Judges:** Martin, Moore, O'Malley - **Cited by:** 1,209 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494598 ## How later opinions describe it (automated extraction) - holding that the defendant psychologist’s statement that had “exercised his medical judgment” in removing the plaintiffs decedent from suicide watch did not preclude a finding that he was aware of and yet disregarded a risk of serious harm, where there were issues of fact as t… - holding that allegations of a prison psychologist’s “grossly inadequate” evaluation of an inmate who subsequently committed suicide, if proven, would constitute dehberate indifference to the inmate’s serious medical needs as a matter of law, thus precluding summary judgment on… - finding that “[t]o satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he t… - finding that a critical element of a supervisory liability claim is the existence of a constitutional infringement (or for the purposes of a motion for summary judgment, a question of fact regarding the existence of a constitutional infringement) committed by the supervisor’s … - explaining that a prison doctor who has provided treatment, “albeit carelessly or inefficaciously . . . has not displayed a deliberate indifference to the prisoner’s needs, but merely a degree of incompetence which does not rise to the level of a constitutional violation” ## Opinion text O’MALLEY, District Judge, dissenting. Although the majority’s opinion is generally well-reasoned and certainly well-written, I must respectfully dissent because I believe we do not have jurisdiction in this case. As the majority notes, “factual issues were contested before the district court,” op. at 701, and, when the district court denied the defendants’ motion for summary judgment based on qualified immunity, it “fail[ed] to make findings of fact,” id. at 701 n. 3. Thus, the factual record on appeal is, at best, unsettled and incomplete. The Supreme Court has ruled 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 trial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). Accordingly, I believe we do not have jurisdiction over this appeal. The majority avoids the jurisdictional hurdle by stating that, “for the purposes of this appeal, both parties have explicitly stipulated to plaintiffs version of the facts.” Op. at 701. I believe the defendants’ “stipulation” in this case is no jurisdictional cure. First, defendants’ “stipulation” appears overly convenient. Earlier, the defendants stipulated in district court that the court’s order denying the motion for summary judgment based on qualified immunity was unobjectionable “both as to form and content.” Joint Appendix at 251. In essence, defendants stipulated below that there were material facts in dispute precluding a finding of qualified immunity. How can defendants now propose to stipulate on appeal that those same facts mandate a finding of qualified immunity? Second, despite their latest “stipulation,” the defendants’ version of certain facts clearly does not “concede the best view of the facts to the plaintiff.” Booher v. Northern Kentucky University Bd. of Regents, 163 F.3d 395, 396 (6th Cir.1998). For example, plaintiff asserts that defendant Howell did subjectively perceive Montgomery’s risk of suicide if released from suicide watch. Cf. op. at 712 (“[ejven if he was aware that Montgomery was suicidal, Howell would not have perceived that Montgomery posed a substantial risk of harm to himself while on suicide watch”) (emphasis added). In his appellate brief, Howell does not merely fail to concede this, he disputes it, and acknowledged this dispute at oral argument. Simply, defendants seek to stipulate to a set of facts in an effort to justify appellate review *714 while steadfastly refuting the inferences plaintiffs assert can and should be drawn from those facts. Without an “unqualified concession” on all issues of fact, however, we do not have jurisdiction over “an interlocutory appeal from the denial of qualified immunity.” Id. at 396-97 . Clearly, all questions presented by this appeal, including the jurisdictional ones, would have been easier if the district court had issued an opinion delineating those facts upon which it relied in rendering judgment. I believe, however, that the district court correctly concluded, as the parties then agreed, that material facts relevant to qualified immunity are in dispute. And, I believe that defendants’ appellate “stipulation” does nothing to alter this fact. Accordingly, I believe we should dismiss this appeal for lack of jurisdiction and revisit these issues, if at all, after a full development of the record. This course would allow us to rely on a fact-finder’s inferences, rather than our own. For these reasons, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494598. Public record. Not legal advice.