William Jacob v. Township of West Bloomfield, et al
OPINION filed to DENY Jacob s motion to dismiss [4358597-2] and his request for sanctions, but to AFFIRM the refusal of the district court to grant Killian qualified immunity as a matter of law. Danny J. Boggs, Ronald Lee Gilman (AUTHORING) and Deborah L. Cook, Circuit Judges.
NOT RECOMMENDED FOR PUBLICATION
File Name: 11a0666n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Sep 12, 2011
LEONARD GREEN, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: BOGGS, GILMAN, and COOK, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Michael Killian appeals from the district court’s
denial of his motion for summary judgment based on his claim of qualified immunity. This case
arises out of various warrantless inspections that Killian conducted on or about William Jacob’s
residential property as a code-enforcement officer for the Township of West Bloomfield. The court
denied Killian’s motion for summary judgment because it determined that Jacob had raised genuine
issues of material fact concerning whether Killian had violated Jacob’s clearly established rights
while conducting the warrantless inspections. Also pending before us is Jacob’s motion to dismiss
for a lack of jurisdiction over Killian’s interlocutory appeal and his request for sanctions against
Killian. For the reasons set forth below, we DENY Jacob’s motion to dismiss and his request for
sanctions, but AFFIRM the refusal of the district court to grant Killian qualified immunity as a
matter of law.
Jacob v. Killian
Jacob alleges that Killian and the Township of West Bloomfield violated his constitutional
rights in the course of unfairly citing him for “blight” and “junk vehicles” in his yard. This is the
third time that the district court has denied one of Killian’s motions for summary judgment. The
background facts are more fully set out in Jacob v. Twp. of W. Bloomfield, 192 F. App’x 330 (6th
Cir. 2006), and Jacob v. Twp. of W. Bloomfield, 531 F.3d 385 (6th Cir. 2008).
Jacob originally brought suit for multiple constitutional violations arising out of the
defendants’ enforcement of Township ordinances against him. After various legal proceedings, the
only remaining unresolved claim is based on Killian’s alleged violation of Jacob’s Fourth
Amendment rights when Killian purportedly entered the curtilage of Jacob’s property on numerous
occasions without a warrant to determine whether Jacob was in compliance with the ordinances.
Killian originally inspected Jacob’s property in 1999 based on an unsolicited complaint
concerning the condition of the property. The officer discovered inoperable vehicles, “castoff
material,” and a general state of disarray. Killian issued a notice of violation after learning of 10
prior complaints regarding Jacob’s property dating back to 1990. After subsequent investigations
showed that Jacob remained in violation, the Township filed misdemeanor criminal charges against
him in October 1999. Jacob pled guilty to the charge of blight, subject to the following plea
Def. will clean up all blight (as directed by code enforcement officer Mike Killian)
and remove fence supports within 14 days. Today – please issue a 30 day
. . . committment [sic] order effective Oct 18, 1999. Officer Killian will inspect on
Oct. 15, 1999. If [the Township attorney] reports all violations removed [after] the
Jacob v. Killian
inspection of Officer Killian on Oct 15, 1999 – set aside the commitment order and
– 2 yrs probation – no code violation.
Killian proceeded to inspect Jacob’s property pursuant to the above agreement. After Killian
notified the Township of Jacob’s continuing violations, Jacob ended up serving the stipulated 30-day
sentence in jail over portions of October and November 1999. As this court previously noted,
“Killian continued to investigate and cite Jacob for blight conditions after Jacob completed his
sentence. A lengthy dispute over the erection of a new fence [around Jacob’s property] followed.”
Jacob, 192 F. App’x at 332 (record citation omitted).
In addition to his Fourth Amendment claim at issue in this appeal, Jacob originally brought
claims for violations of his procedural- and substantive-due-process rights and his equal-protection
rights, as well as several other Fourth Amendment claims based on actions other than the inspections
presently at issue. The district court granted the defendants (Killian, the Township, and another
code-enforcement officer whose actions are not relevant to this appeal) summary judgment on all
of Jacob’s claims except for his Fourth Amendment claim based on Killian’s inspections and his
procedural-due-process claim based on the 30-day jail sentence.
On appeal, this court partially reversed the judgment of the district court by granting Killian
qualified immunity on Jacob’s procedural-due-process claim. One of the reasons for this reversal
was that Jacob’s success on this claim would undermine the validity of his sentence, which would
be contrary to Heck v. Humphrey, 512 U.S. 477 (1994). Jacob, 192 F. App’x at 337. This court also
granted Killian qualified immunity under Heck concerning the 1999 inspection that led directly to
Jacob v. Killian
Jacob’s guilty plea. Id. at 334-35. Jacob’s allegations of inspections in violation of the Fourth
Amendment that took place after his incarceration, however, are not barred by Heck. Id. at 335.
But while Killian’s original appeal was pending, this court decided Widgren v. Maple Grove
Twp., 429 F.3d 575 (6th Cir. 2005), which held that a “purely administrative” warrantless entrance
by a tax assessor onto the curtilage of a house “does not violate the Fourth Amendment by observing
the exterior of a house for a purely ‘tax purpose.’” Jacob, 531 F.3d at 390 (quoting Widgren, 429
F.3d at 585). This caused us, in Killian’s original appeal, to vacate the district court’s judgment as
to Killian’s post-incarceration inspections and to remand the case for the district court to consider
whether Widgren applied to the present circumstances. Jacob, 192 F. App’x at 335.
On this first remand, the district court denied Killian’s renewed motion for summary
judgment, which argued that Widgren entitled him to qualified immunity regarding his
post-incarceration inspections. This court, in disposing of Killian’s second appeal, affirmed the
decision of the district court because Killian’s post-incarceration inspections were more analogous
to criminal investigations than to the administrative inspections that were at issue in Widgren.
Jacob, 531 F.3d at 390-92. The case then resumed in the district court.
Killian thereupon filed his third motion for summary judgment, the motion that is at issue
in this appeal. He alternatively argued that he is entitled to qualified immunity because (1) he did
not enter Jacob’s protected curtilage at all; (2) his intrusions, if they did occur, did not violate clearly
established law; and (3) Jacob consented to the inspections as a condition of being on probation.
A central issue in this case is whether Killian did or did not enter the protected curtilage of
Jacob’s house. One of our prior opinions explained that
Jacob v. Killian
[t]he property is partially enclosed by varying types of fencing. There is a significant
gap in the fence on either side of the driveway, exposing Jacob’s yard to passersby.
The driveway entrance is on Willow Road, which Jacob describes as “a main
highway.” Jacob erected several “No Trespassing” and similar signs around his
Jacob, 192 F. App’x at 331 (record citations omitted). On Killian’s first appeal, this court accepted
the district court’s determination that Jacob’s “backyard is located immediately behind the home and
that the majority of the backyard is enclosed by wire and wood fencing. . . . [T]herefore, . . . the
backyard was part of the protected curtilage of Jacob’s house.” Id. at 334 (record citation and
internal quotation marks omitted).
This ruling is now the law of the case. Jacob, 531 F.3d at 389. And because this court
determined in 1997 that “the curtilage is considered part of the house itself for Fourth Amendment
purposes,” id. at 391 (quoting United States v. Jenkins, 124 F.3d 768, 772 (6th Cir. 1997)), “there
is no question that the Fourth Amendment’s protection of the intimate area surrounding [Jacob’s]
home was clearly established” when Killian’s warrantless searches began in 1999, id. at 391-92.
Killian conceded for the purposes of his prior summary-judgment motions that he had in fact
entered Jacob’s backyard during the post-incarceration inspections. He instead challenged whether
Jacob’s backyard was protected curtilage and, if so, whether his intrusions violated clearly
established law. Because the parties have now engaged in further discovery, the record currently
contains more detailed facts regarding Killian’s inspections. Killian thus brought the current motion
for summary judgment in part to challenge the claim that he had actually entered the area that has
already been determined to have the status of protected curtilage.
Jacob v. Killian
One of Killian’s allegedly illegal searches occurred on January 7, 2000. Expert witnesses
for both parties testified regarding where they think Killian was standing when he took photographs
of Jacob’s property on that date. Jacob’s expert also determined that one photograph in the record
was taken on a different date than the others. In addition, Jacob alleges that Killian conducted
inspections of the property on other occasions, including on January 11, 2001, when Jacob claims
that Killian entered the yard and took photographs at approximately 11 a.m. Jacob also claims, more
generally, that he saw Killian “rummaging around” the yard on numerous occasions. Although Jacob
claims that other persons have also observed Killian in the yard, he has not provided any testimony
from such persons.
In rejecting Killian’s argument that he was never in fact on Jacob’s protected curtilage, the
district court decided that it did not need to address the January 7, 2000 inspection because “even
if the court were to find that Killian was outside the curtilage on January 7, 2000, questions of fact
remain” regarding other incidents. Killian further argued that his inspections did not violate clearly
established law because Jacob consented to such inspections in his plea agreement. The district
court determined that Killian was “reaching” with this argument because Jacob “disputes that he was
given probation at all.” Furthermore, it reasoned that
even if [Jacob] was given probation, there is no language in the agreement indicating
that [Jacob] waived his Fourth Amendment rights. It is difficult to see how Killian
could have reasonably believed that the vague language of the plea agreement served
as a free and voluntary consent that entitled him to search [Jacob’s] yard without a
warrant at any time.
The court thus determined that Killian was not entitled to summary judgment on his
Jacob v. Killian
We have jurisdiction pursuant to 28 U.S.C. § 1291 to hear an appeal from a “final decision”
of the district court. Although the denial of summary judgment is generally considered a nonfinal
order and is therefore not appealable to this court, the “denial of a motion for summary judgment on
the ground of qualified immunity may be deemed a final, appealable order because the qualified
immunity doctrine exists partly to protect officials from having to stand trial, and a defendant
wrongly forced to go to trial loses the benefit of the immunity even if exonerated after trial.” Bishop
v. Hackel, 636 F.3d 757, 764 (6th Cir. 2011). But the “denial of a claim of qualified immunity is
immediately appealable only if the appeal is premised not on a factual dispute, but rather on ‘neat
abstract issues of law.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)). Jacob argues that
we lack jurisdiction to hear Killian’s interlocutory appeal because Killian is contesting factual rather
than legal determinations.
This court has held, however, that “where the trial court’s determination that a fact is subject
to reasonable dispute is blatantly and demonstrably false, a court of appeals may say so, even on
interlocutory review.” Id. at 769 (internal quotation marks omitted) (explaining that in Scott v.
Harris, 550 U.S. 372 (2007), the Supreme Court rejected, on interlocutory appeal, “both the
plaintiff’s version of the facts and the district court’s determination that a genuine factual dispute
existed” concerning the defendant’s claim of qualified immunity). Scott permits interlocutory
appeals where the plaintiff’s version of the facts “is ‘so utterly discredited by the record’ as to be
rendered a ‘visible fiction.’” Chappell v. City Of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009)
(quoting Scott, 550 U.S. at 380-81). This court has characterized Scott’s allowance of interlocutory
Jacob v. Killian
appeals as sanctioning challenges based on the legal issue of “whether the factual disputes (a) are
genuine and (b) concern material facts” rather than “mere quibbling with the district court’s
reading of the factual record.” Id. (emphasis in original) (internal quotation marks omitted); but see
Jones v. Yancy, No. 10–6216, 2011 WL 1557384, at *3 (6th Cir. Apr. 25, 2011) (unpublished
opinion) (holding that although “a determination that an issue of fact is ‘genuine’ is unreviewable,”
Scott allows “interlocutory appeals from denials of summary judgment in those rare cases where the
district court makes a blatant and demonstrable error” (brackets and internal quotation marks
In any event, where a defendant raises the purely legal question of whether the facts alleged
support a claim that clearly established law was violated, we can ignore the defendant’s factual
contentions and resolve the legal issue without dismissing the entire appeal for a lack of jurisdiction.
Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005). We thus have jurisdiction over
Killian’s interlocutory appeal to the extent that he challenges the district court’s legal determinations,
id., as well as to decide whether this case is one of those rare situations “where the trial court’s
determination that a fact is subject to reasonable dispute is blatantly and demonstrably false,”
Bishop, 636 F.3d at 769.
“Under the doctrine of qualified immunity, government officials performing discretionary
functions are shielded from civil liability unless their conduct violates clearly established
constitutional rights.” Id. at 765. A government official who moves for summary judgment on the
basis of qualified immunity is entitled to the defense unless a reasonable juror viewing the facts in
Jacob v. Killian
the light most favorable to the plaintiff might conclude that the official (1) violated a constitutional
right (2) that was clearly established. Pearson v. Callahan, 555 U.S. 223, 232 (2009). We review
de novo the district court’s denial of summary judgment based on qualified immunity. Bishop, 636
F.3d at 765.
Sufficiency of the facts regarding Killian’s inspections other than on January 7, 2000
This court has already determined that Jacob’s backyard qualifies as protected curtilage and
that Killian’s warrantless inspections of that area violated clearly established law. Jacob, 531 F.3d
at 391-92. But Killian now challenges whether Jacob has raised a genuine issue of material fact
concerning any post-incarceration visits other than Killian’s January 7, 2000 inspection (which
Killian challenges on different grounds). We have jurisdiction to address this claim because Killian
contends that the district court incorrectly ruled that Jacob raised a genuine issue of material fact as
to when and how many times Killian entered Jacob’s yard. See Chappell, 585 F.3d at 906 (holding
that this court has jurisdiction to review the legal issues concerning “whether the factual disputes
(a) are genuine and (b) concern material facts”).
According to Killian, Jacob does not have sufficient evidence to support the claim that
Killian entered the backyard on numerous occasions after Jacob’s incarceration. But Killian does
not challenge his specific location within Jacob’s property during these incidents. Instead, he argues
that there is insufficient evidence to create a genuine issue concerning whether there were any
post-incarceration inspections other than the one on January 7, 2000.
Killian attempts to limit Jacob’s claim to the four incidents that this court previously
referenced based on Jacob’s response to one of Killian’s interrogatories. See Jacob, 192 F. App’x
Jacob v. Killian
at 334 (noting that “[d]uring the course of discovery, Jacob disclosed that he intended to pursue his
Fourth Amendment claim based on four separate incidents”). But the district court correctly noted
that the “precise factual contours of Plaintiff’s Fourth Amendment claim” were not previously at
issue. This court in fact expressed no intent to prevent Jacob from pursuing his claim based on other
incidents as well. See id. at 332 (noting that Jacob alleged “at least” four inspections of his
Killian also ignores the district court’s determination that he “appears to confuse the alleged
January 7, 2000 search with a search Plaintiff alleges to have occurred on January 11, 2001. Based
upon [Jacob’s] allegations, these are distinct incidents.” On appeal, Killian argues that although
Jacob claims that Killian took photographs of Jacob’s yard on both January 7, 2000 and January 11,
2001, “[d]iscovery revealed that the only occasion Defendant took photographs was in January,
2000.” But the fact that additional photographs were not uncovered during discovery does not mean
that they were never taken because, as the district court explained, such photographs might simply
be unavailable. The absence of any January 11, 2001 photographs in the record thus does not wholly
negate Jacob’s testimony that Killian took photographs on that date. Moreover, Jacob’s expert
determined that not all of the photographs in the record were taken on January 7, 2000. Killian also
admitted that he inspected Jacob’s property on June 26, 2001.
In addition, Jacob testified more generally that there were many occasions on which he
walked out of his house and found Killian “rummaging around” or “rumbling and rambling” in the
yard. Jacob even recalled the details of a specific conversation that he had with Killian on one such
occasion. Jacob legitimately claims that he could not list the specific date of each incident because
Jacob v. Killian
Killian intruded on his property so many times. Cf. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d
428, 436 (5th Cir. 2005) (holding that the plaintiff’s sexual-harassment claim “that she was touched
‘numerous times’ instead of providing exact dates or the exact number of instances” did not prevent
her allegations from raising a genuine issue of material fact).
The dates of Killian’s alleged intrusions are particularly important in the present case because
only his post-incarceration inspections are relevant. But the January 7, 2000, January 11, 2001, and
June 26, 2001 incidents are sufficient to support Jacob’s claim that a number of Killian’s alleged
inspections occurred after Jacob’s incarceration.
Killian also argues that Jacob’s claims are not substantiated by other witnesses. But Killian’s
admission that he inspected Jacob’s property on June 26, 2001 corroborates Jacob’s allegations of
Killian’s post-incarceration inspections. Moreover, Jacob’s own testimony concerning Killian’s
intrusions is affirmative evidence that is sufficient, without more, to defeat a defendant’s motion for
summary judgment. See Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir. 2006)
(reversing the district court’s grant of summary judgment to the defendants because the plaintiff’s
own testimony was sufficient to create a genuine issue of material fact regarding the seaworthiness
of the defendants’ vessel). We therefore need not address the relevance of Jacob’s unsubstantiated
claims that third parties also saw Killian in the backyard.
According to Killian, however, he should still be granted qualified immunity because he
inspected “Jacob[’s] property when ordered to do so by the Court or prosecutor.” This argument,
even if factually correct, does not entitle him to qualified immunity because, “since World War II,
the ‘just following orders’ defense has not occupied a respected position in our jurisprudence.”
Jacob v. Killian
Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010) (quoting O’Rourke v. Hayes, 378
F.3d 1201, 1210 n.5 (11th Cir. 2004)). “Under the Supremacy Clause, public officials have an
obligation to follow the Constitution even in the midst of a contrary directive from a superior or in
a policy.” Kennedy, 595 F.3d at 337 (brackets and internal quotation marks omitted). Moreover,
Killian is not entitled to summary judgment on this claim because he has not pointed to any evidence
substantiating that he conducted all of his post-incarceration inspections pursuant to an order from
his superior within the Township.
Jacob has therefore raised a genuine issue of material fact as to whether Killian violated
Jacob’s Fourth Amendment rights by inspecting Jacob’s property after his incarceration ended in
November 1999. Upon our limited review of the factual record, Killian’s challenge to the
non-January 7, 2000 inspections falls well short of showing that the trial court’s determination that
facts related to these inspections are subject to reasonable dispute is “blatantly and demonstrably
false.” See Bishop v. Hackel, 636 F.3d 757, 769 (6th Cir. 2011).
The district court’s decision not to address the January 7, 2000 inspection
Killian further claims that he is entitled to qualified immunity because the photographs from
his January 7, 2000 visit to the property establish that he was not on Jacob’s protected curtilage
during the inspection. Unlike Killian’s argument that Jacob has not provided sufficient evidence to
show that the other inspections ever occurred, Killian argues that although he took the January 7,
2000 photographs, he did not do so from Jacob’s protected curtilage. The district court declined to
address Killian’s argument because, even if Killian is correct, the genuine issues of material fact that
exist regarding the other incidents would still preclude a ruling in his favor.
Jacob v. Killian
“A court, in its discretion in shaping the case for trial, may deny summary judgment as to
portions of the case that are ripe therefor, for the purpose of achieving a more orderly or expeditious
handling of the entire litigation.” Powell v. Radkins, 506 F.2d 763, 765 (5th Cir. 1975). The
Comments to the recently revised Rule 56(g) of the Federal Rules of Civil Procedure also explain
that where the court clearly “cannot grant all the relief requested by the motion, it may properly
decide that the cost of determining whether some potential fact disputes may be eliminated by
summary disposition is greater than the cost of resolving those disputes by other means, including
Furthermore, the court may decline to decide a specific factual issue, “[e]ven if the court
believes that a fact is not genuinely in dispute,” because the court “may conclude that it is better to
leave open for trial facts and issues that may be better illuminated by the trial of related facts that
must be tried in any event.” Id.; see also 10B Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2737 (3d ed.1998) (noting that if “entering a partial
summary judgment by identifying the facts that no longer may be disputed would not materially
expedite the adjudication, [the court] may decline to do so”). The district court therefore properly
declined to address Killian’s claim of qualified immunity regarding the January 7, 2000 inspection.
Effect of Jacob’s alleged probation on Killian’s qualified-immunity claim
Killian also challenges the district court’s rejection of his argument that even if he entered
Jacob’s protected curtilage, these follow-up inspections did not violate Jacob’s Fourth Amendment
rights because Jacob consented to them in his plea agreement as a term of his probation. A party
“may waive his Fourth Amendment rights by consenting to a search,” but this consent “has effect
Jacob v. Killian
only if it is given freely and voluntarily.” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004)
(citing Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).
Jacob’s alleged waiver of his Fourth Amendment rights
The district court determined that Killian “is reaching here” because Jacob “disputes that he
was given probation at all.” Interpreting the facts in the light most favorable to Jacob, the court
explained that Jacob’s plea agreement provided that he would receive probation only if his
subsequent compliance with the ordinances were to exempt him from serving time in jail. Because
Jacob failed to comply and therefore ended up serving 30 days in jail, his probation arguably never
But Killian points to the Township’s records showing that Jacob in fact received probation.
In the entry regarding Jacob’s plea agreement, these records state that Jacob agreed to two years of
probation. The records also show, however, that the case was closed after Jacob served his 30 days
in jail, without any mention of probation. And Killian has not demonstrated why the vague
shorthand notations in the Township’s administrative records should have more force than the actual
language of the plea agreement. These ambiguous records thus do not negate the district court’s
interpretation of the plea agreement. Moreover, Jacob claims that the reference to probation was
added to his plea agreement after he signed it, and that he did not knowingly or voluntarily agree to
be on probation.
The district court decided that even if Jacob was given probation, “there is no language in
the agreement indicating that [he] waived his Fourth Amendment rights.” “Whether consent was
free and voluntary so as to waive the warrant requirement of the Fourth Amendment is ‘a question
Jacob v. Killian
of fact to be determined from the totality of all the circumstances.’” Carter, 378 F.3d at 587
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)); see also United States v. Carr, 187
F. App’x 602, 607 (6th Cir. 2006) (affirming the suppression of evidence that came from a
warrantless search “[b]ecause the issue of consent is a factual determination that we review with a
high degree of deference”). Jacob’s plea agreement does not tie his possible probation to any sort
of consent to continuing inspections of his property following his incarceration.
Lower expectation of privacy associated with probation
Killian responds by arguing in his reply brief that, in addition to consenting to the
inspections, Jacob’s probationary status “demonstrated a diminished expectation of privacy” that
allowed for Killian’s warrantless searches. But because a genuine issue of material fact exists as to
whether Jacob was on probation at all, Killian is not entitled to qualified immunity based on this
argument even if Jacob’s alleged probation would have allowed Killian’s inspections.
Jacob’s request of attorney fees or sanctions
Finally, we turn to Jacob’s request for attorney fees or sanctions against Killian for bringing
this allegedly frivolous appeal in an effort to prolong the litigation. Jacob’s request is governed by
Rule 38 of the Federal Rules of Appellate Procedure, which provides that if the court “determines
that an appeal is frivolous, it may, after a separately filed motion or notice from the court and
reasonable opportunity to respond, award just damages and single or double costs to the appellee.”
See also Dubay v. Wells, 506 F.3d 422, 432 (6th Cir. 2007) (“The awarding of costs and attorney fees
under Federal Rule of Appellate Procedure 38 is a matter entrusted to our discretion.”). But “[t]he
Advisory Committee Notes make clear that a statement inserted into an appellee’s brief requesting
Jacob v. Killian
sanctions,” such as Jacob’s request here, “does not constitute sufficient notice, but rather the appellee
must file a separate motion for sanctions.” Bagsby v. Gehres, 225 F. App’x 337, 354 (6th Cir. 2007).
Even without a separate motion from the requesting party, however, this court may still give
sua sponte “notice and afford the appellant the opportunity to respond if it determines [that] the
appeal is frivolous.” Id. Although this is Killian’s third appeal of the district court’s denial of one
of his motions for summary judgment based on a claim of qualified immunity, his first appeal was
partially successful (concerning his procedural-due-process claim and his preincarceration
inspection) and his second appeal resulted from this court’s remand for the district court to determine
if Widgren applied to the present case. Killian’s current appeal also raises some legitimate, albeit
unmeritorious, issues based on facts that have been further developed since his prior motion. We
therefore decline to exercise our discretion to proceed on the issue sua sponte. See Dubay, 506 F.3d
at 433 (“While we find Dubay’s challenge to the Michigan Paternity Act to lack support in our equal
protection jurisprudence, we do not consider his appeal of the district court's decision to be frivolous
or worthy of imposing sanctions.”).
But we are also cognizant of the fact that this is Killian’s third interlocutory appeal from the
denial of a motion for summary judgment in which he has sought qualified immunity. We further
note that this case has been pending since 2003. The ability of defendants to bring interlocutory
appeals from denials of qualified immunity raises the concern that they might bring such motions
solely in order to delay the proceedings against them. See Behrens v. Pelletier, 516 U.S. 299, 310
(1996) (holding that “if and when abuse does occur, . . . it is well within the supervisory powers of
Jacob v. Killian
the courts of appeals to establish summary procedures and calendars to weed out frivolous claims”
(brackets and internal quotation marks omitted)).
With our decision here, the law of the case now covers Killian’s attempts to obtain qualified
immunity based on both legal and fact-based arguments. The district court should therefore feel free
to summarily dispose of any similar motions in the future if the court determines that Killian is
bringing the motion for the dilatory purpose of delaying trial. See English v. Dyke, 23 F.3d 1086,
1090 (6th Cir. 1994) (explaining that the district court has the discretion to hold that the defendant
has waived a qualified-immunity defense where the “defendant has failed to exercise due diligence
or has asserted the defense for dilatory purposes”).
For all of the reasons set forth above, we DENY Jacob’s motion to dismiss and his request
for sanctions, but AFFIRM the refusal of the district court to grant Killian qualified immunity as
a matter of law.
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