Robinson v. Barrow et al

Filing 65

Opinion and Order signed by Judge James S. Gwin on 3/22/12. The Court grants plaintiff's motion to deem defendants' appeal frivolous and denies defendants' motion to stay. (Related Doc. 61 , 63 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MARTIN ROBINSON,
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Plaintiff,
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vs.
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LT. JEROME BARROW, et al.,
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Defendants.
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CASE NO. 1:11-CV-01609

OPINION & ORDER
[Resolving Doc. No. 61, 63]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Defendants City of Cleveland, Jerome Barrow, Anthony Spencer, Erin O’Donnell, and
Michael Demchak have filed an interlocutory appeal of this Court’s denial of qualified immunity to
liability under 42 U.S.C. § 1983. [Doc. 59.] Prior to the filing of Defendants’ motion to stay, [Doc.
63], Plaintiff Martin Robinson preemptively moved to certify the Defendants’ appeal as frivolous and
to proceed with the currently-scheduled trial, [Doc. 61].1/ For the reasons stated below, the Court
GRANTS the Plaintiff’s motion to certify the Defendants’ appeal as frivolous and DENIES the
Defendants’ motion to stay.
I. Legal Standard
As a general rule, a defendant can file an interlocutory appeal of the denial of his motion for
summary judgment on qualified immunity grounds. Dickerson v. McClellan, 37 F.3d 251, 252 (6th

1/

The Defendants oppose the Plaintiff’s motion. [Doc. 64.]

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Cir. 1994) (citing Mitchell v. Forsyth, 472 U.S. 511, 522 (1985)). When such an appeal is taken, the
district court is divested of jurisdiction and proceedings are stayed pending a decision by the
appellate court. See id.; see also Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990); Apostol v.
Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989) (citing Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982)).
A defendant’s right to bring such an interlocutory appeal is subject to two limitations,
however. First, a defendant cannot stop district court proceedings by simply asserting a frivolous
interlocutory appeal. If a defendant’s challenge to the denial of his qualified immunity defense is
devoid of merit, the district court can declare it as such and move forward with the case. See Behrens
v. Peltier, 516 U.S. 299, 310-11 (1996) (citing Yates v. Cleveland, 941 F.2d 444, 448-49 (6th Cir.
1991)).
The purpose underlying the district court’s authority to disregard a frivolous interlocutory
appeal is manifest. An interlocutory appeal is “subject to abuse.” Kennedy v. City of Cleveland, 797
F.2d 297, 300 (6th Cir. 1986). A defendant can assert an interlocutory appeal simply to delay a
proceeding, causing prejudice to both the plaintiff and the court. To avoid the “deleterious effects
of unfounded delays,” some Circuit Courts2/ have held that the district court retains the authority to
certify an appeal as frivolous and “get on with trial.” Apostol, 870 F.2d at 1339.
Second, a defendant cannot immediately appeal a district court order denying him summary
judgment on qualified immunity grounds if the determination is fact-related. The Supreme Court

2/

The Sixth Circuit has neither explicitly endorsed nor rejected this procedure. See Dickerson, 37 F.3d at 252
(commenting that “this court has suggested in the past that a district court may have jurisdiction to certify an interlocutory
appeal from the denial of qualified immunity as frivolous,” but vacating the district court’s dismissal of the defendant’s
notice of appeal)

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Gwin, J.
held in Johnson v. Jones, 515 U.S. 304 (1995), that qualified immunity appeals should be limited to
“cases presenting neat abstract issues of law.” Id. at 317 (citation omitted). The Sixth Circuit has
also noted that denials of summary judgment are only appealable if “the issue on appeal is not what
facts the parties may be able to prove, but whether the plaintiff’s facts, taken at their best, show a
violation of clearly established law.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999); see also
Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997). The Sixth Circuit lacks jurisdiction to review a
denial of summary judgment that “turns on the existence of a genuine issue of material fact.”
Skousen v. Brighton High Sch., 305 F.3d 520, 525 (6th Cir. 2002); see also Farm Labor Org. Comm.
v. Ohio State Highway Patrol, 308 F.3d 523, 536-37 (6th Cir. 2002).
II. Analysis
The Sixth Circuit has made it “clear that a defendant, entitled to invoke a qualified immunity
defense, may not appeal a district court’s summary judgment order,” where, as here, “that order
determines whether or not the pretrial record sets forth a genuine issue of fact for trial.” Estate of
Carter v. Detroit, 408 F.3d 305, 307 (6th Cir.2005) (citation and quotation marks omitted). This
Court’s denial of qualified immunity did not”turn on an issue of law,” Johnson, 515 U.S. at 309,”
and is not “an appealable final decision under 28 U.S.C. § 1291,” id.
Moreover, in their motion for summary judgment, the Defendants relied entirely on their own
version of the facts and made no effort to make the proper argument: based on the facts as alleged
by Plaintiff Robinson, the Defendants’ did not violate Robinson’s clearly established constitutional
rights. Rather, the Defendants used twenty pages to argue that they were justified in their use of force
“given the threat of deadly force Robinson posed against them . . . and [Robinson’s] inexplicable
attempt to threaten them with deadly force.” [Doc. 30 at 13.] The “legal issues” that the Defendants’
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claim they will pursue on appeal also depend on the “particularized circumstances presented in this
case”—circumstances on which the parties do not agree. [Doc. 64.]
Furthermore, the Defendants do not provide any other argument for a stay, and the Court
does not find any reason to do so. In resolving this motion for a stay pending appeal, this Court must
balance: “1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;
2) the likelihood that the moving party will be irreparably harmed absent a stay; 3) the prospect that
others will be harmed if the court grants the stay; and 4) the public interest in granting the stay.”
Grutter v. Bollinger, 247 F.3d 631, 632 (6th Cir. 2001). The “four factors are not prerequisites but
are interconnected considerations that must be balanced together.” Coal. to Defend Affirmative
Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006). “The probability of success that must be
demonstrated is inversely proportional to the amount of irreparable injury [the movant] will suffer
absent the stay.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153
(6th Cir. 1991). In this case, it is unlikely that the Defendants will prevail on the merits of the appeal,
Plaintiff Robinson will be harmed by further delay, and the public interest favors moving this matter
forward and finally determining the Defendants’ liability. The Defendants do not show that they will
be overwhelmingly and irreparably harmed absent a stay, and on balance, the four factors favor
proceeding to trial. Accordingly, the Court declines to stay the matter pending the Defendants’
frivolous appeal.
III. Conclusion
For the foregoing reasons, the Court GRANTS the Plaintiff’s motion to deem the

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Defendants’ appeal frivolous, and DENIES the Defendants’ motion to stay.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: March 22, 2012

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