Darryl Thompson v. Michael Grida, et al

Filing

OPINION and JUDGMENT filed: Appeal is DISMISSED for lack of jurisdiction; case is REMANDED to proceed to trial, decision for publication pursuant to local rule 206. David W. McKeague, Jane Branstetter Stranch (AUTHORING), Circuit Judges; Samuel H. Mays, Jr., U.S. District Judge for the Western District of Tennessee.

Case: 09-4369

Document: 006111066321

Filed: 09/08/2011

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0261p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 09-4369
v.
>
,
MICHAEL GRIDA,
Defendant, DAVID ROOSE; STEVE SHUBURT; OFFICER
OLSZEWSKI; OFFICER KELLY,
Defendants-Appellants. N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-00271—Solomon Oliver, Jr., Chief District Judge.

DARRYL THOMPSON,

Plaintiff-Appellee,

Argued: March 8, 2011
Decided and Filed: September 8, 2011
Before: McKEAGUE and STRANCH, Circuit Judges; MAYS, District Judge.*
_________________
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.

*

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

1

Case: 09-4369

No. 09-4369

Document: 006111066321

Thompson v. Grida, et al.

Filed: 09/08/2011

Page: 2

Page 2

_________________
OPINION
_________________
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.

Case: 09-4369

No. 09-4369

Document: 006111066321

Filed: 09/08/2011

Thompson v. Grida, et al.

Page: 3

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

Case: 09-4369

No. 09-4369

Document: 006111066321

Filed: 09/08/2011

Thompson v. Grida, et al.

Page: 4

Page 4

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

Case: 09-4369

No. 09-4369

Document: 006111066321

Filed: 09/08/2011

Thompson v. Grida, et al.

Page: 5

Page 5

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

Case: 09-4369

No. 09-4369

Document: 006111066321

Filed: 09/08/2011

Thompson v. Grida, et al.

Page: 6

Page 6

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.