Beyoglides v. Montgomery County Sheriff Department et al
DECISION AND ENTRY: (1) DENYING PLAINTIFFS MOTION TO CERTIFY DEFENDANTS INTERLOCUTORY APPEAL AS FRIVOLOUS (DOC. 164); (2) GRANTING DEFENDANTS MOTION TO STAY PROCEEDINGS IN THE DISTRICT COURT PENDING THE OUTCOME OF THE INTERLOCUTORY APPEAL (DOC. 174); AND (3) VACATING THE TRIAL DATE AND PRETRIAL DEADLINES. Signed by Magistrate Judge Michael J. Newman on 2/21/2017. (dm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID M. HOPPER, Special Administrator
of the Estate of Robert Andrew
Richardson, Sr., Deceased,
Case No. 3:14-cv-158
MONTGOMERY COUNTY SHERIFF, et al.,
Magistrate Judge Michael J. Newman
DECISION AND ENTRY: (1) DENYING PLAINTIFF’S MOTION TO CERTIFY
DEFENDANTS’ INTERLOCUTORY APPEAL AS FRIVOLOUS (DOC. 164); (2)
GRANTING DEFENDANTS’ MOTION TO STAY PROCEEDINGS IN THE DISTRICT
COURT PENDING THE OUTCOME OF THE INTERLOCUTORY APPEAL (DOC.
174); AND (3) VACATING THE TRIAL DATE AND PRETRIAL DEADLINES
This 42 U.S.C. § 1983 case, for which the parties have consented, is before the Court on:
(1) Plaintiff’s motion to certify Defendants’ appeal as frivolous and to proceed to trial (doc. 164):
and (2) Defendants’ motion to stay proceedings pending the outcome of the interlocutory appeal
(doc. 174). Defendants filed a memorandum in opposition to Plaintiff’s motion to certify. Doc.
173. Plaintiff, in his motion to certify, preemptively argued that a stay pending appeal should
not be granted. Doc. 164-1 at PageID 4159. The Court has carefully considered all of the
foregoing, and these motions are now ripe for decision.
On September 30, 2016, Defendants moved for summary judgment arguing, in part, that
they are entitled to: (1) qualified immunity on Plaintiff’s excessive force and deliberate
indifference claims; (2) immunity under Ohio Rev. Code § 2744.03 for Plaintiff’s wrongful
death claim asserted under Ohio law; and (3) summary judgment as a matter of law concerning
Plaintiff’s claims against Montgomery County Sheriff Phil Plummer under Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978). Doc. 114.
On February 6, 2017, the undersigned issued a decision that, in part, found genuine issues
of material fact existed precluding summary judgment in favor of Defendants on the basis of
qualified immunity and state law immunity. Doc. 156. The Court also found genuine issues of
fact remaining on Plaintiff’s § 1983 claims against Sheriff Plummer under Monell. Id. On
February 16, 2017, Defendants filed a notice of appeal from the Court’s summary judgment
decision. Doc. 163. Defendants specifically assert error in the Court’s conclusions concerning:
(1) qualified immunity as it relates to Plaintiff’s § 1983 excessive force claim;1 (2) state law
immunity under Ohio Rev. Code § 2744.03; and (3) Sheriff Plummer’s liability in his official
capacity under §1983 by application of Monell. Doc. 163.
“A proper notice of appeal divests the district court of jurisdiction and transfers
jurisdiction to the court of appeals.” Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994)
(citing Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993)). The denial of qualified immunity
constitutes an appealable decision when the denial “turns on an issue of law[,]” rather than issues
of fact. McKinney v. Lexington–Fayette Urban Cty. Gov’t, 651 F. App’x 449, 458 (6th Cir.
2016) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); DiLuzio v. Village of Yorkville, 796
F.3d 604, 609 (6th Cir. 2015)). Plaintiff asks this Court to certify that Defendants’ appeal is
frivolous because the Court’s summary judgment decision turns on genuine issues of material
fact, rather than issues of law. Doc. 164 at PageID 4149.
In reviewing Defendants’ notice of appeal, it appears that they do not, at this time, challenge the
undersigned’s conclusions concerning Plaintiff’s deliberate indifference claim. Doc. 163 at PageID 411819. Thus, in the absence of a settlement between the parties, some significant portion of this case will
ultimately be tried.
Noting that appeals from qualified immunity decisions “can be employed for the sole
purpose of delaying trial[,]”2 and that “delaying trial in order to allow a defendant to appeal a
denial of qualified immunity prolongs the process, often to the disadvantage of the plaintiff[,]”
courts, including the Sixth Circuit, have suggested availability of a procedure whereby district
courts can “certify an appeal as frivolous and begin the trial[.]” Yates v. City of Cleveland, 941
F.2d 444, 448 (6th Cir. 1991). Despite such suggestion in Yates, supra, the Sixth Circuit
subsequently held that district courts lack the authority to “dismiss a notice of appeal from such
an order[,]” Dickerson v. McClellan, 37 F.3d at 252 (internal citation omitted), and also lack
authority “to certify [an] appeal as frivolous[.]” Adams v. Yontz, No. 94-3767, 94-3770, 1996
WL 5563, at *3 (6th Cir. Jan. 5. 1996).
The Sixth Circuit, more recently, has been more equivocal concerning the Court’s
jurisdiction to certify an appeal as frivolous, stating that “[a] district court may (or may not) have
authority to issue an order labeling an interlocutory appeal as frivolous after the government
defendants file a notice of appeal.” McNeal v. Kott, 590 F. App’x 566, 569-70 (6th Cir. 2014)
(parenthetical in original). Assuming, arguendo, that the Court does possess the authority to
certify Defendants’ appeal as frivolous and to proceed with trial, the undersigned declines to do
so. Instead, Plaintiff should seek such determination regarding frivolousness and jurisdiction
directly with the Sixth Circuit. See Offineer v. Kelly, No. C2-09-CV-493, 2011 WL 736397, at
*2 (S.D. Ohio Feb. 23, 2011) (stating that “[a]ny decision on the frivolity of the Defendants’
appeal is for the Sixth Circuit alone to decide”). As a result, Plaintiff’s motion (doc. 164) is
The undersigned makes no finding and makes no suggestion that Defendants seek an appeal in
this case solely in an effort to delay trial.
Next, the Court considers the issue of a stay pending resolution of Defendants’
interlocutory appeal. In determining whether to grant a stay pending the outcome of an appeal,
the district court considers four factors, namely, “(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.” Michigan Coal. of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). “These are factors to be
balanced, not prerequisites to be met.” Stephens v. Childers, No. 94-6525, 1994 WL 761234, at
*1 (6th Cir. Dec. 13, 1994). Balancing these factors, and considering the interests of judicial
economy, the Court concludes that a stay of proceedings pending Defendants’ interlocutory
appeal is appropriate.3 Therefore, the Court GRANTS Defendants’ motion to stay proceedings
pending the outcome of Defendants’ appeal.
IT IS SO ORDERED.
February 21, 2017
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
The undersigned makes no finding as to whether a potential federal investigation of the
Montgomery County, Ohio Jail by the U.S. Department of Justice warrants a stay of proceedings. See
doc. 174 at PageID 4244-47. If still an issue following disposition of Defendants’ appeal by the Sixth
Circuit, the undersigned will address a stay on such grounds at that time.
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