NOT RECOMMENDED FOR PUBLICATION File Name: 17a0235n.06
No. 16-6100 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

AMY ELIZABETH GUY, Plaintiff-Appellee,

v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Defendant, JANIE ROMINES, Defendant-Appellant. _________________________________/ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) On Appeal from the United States District Court for the Middle District of Tennessee

Before: GUY, CLAY, and GRIFFIN, Circuit Judges. RALPH B. GUY, JR., Circuit Judge. A brief encounter between a corrections officer and a pretrial detainee who was asking to see a nu rse ended with the detain ee being sprayed with a chemical agent and charged with assaulting the officer. Amy G uy, the pretrial detainee, sued Janie Romines, the corrections officer, alleging ex cessive force, deliberate indifference to serious medical needs, unlawful arrest, and malicious prosecution under 42 U.S. C. § 1983. Officer Romines brings this interlocutor y appeal from the district court’s denial of her motion for summary judgment raising qualified immunity with respect to each of those claims. For the reasons that follow, we affirm in part, reve rse in part, and remand for further proceedings consistent with this opinion.Case No. 16-6100 2 Guy v. The Metro. Gov’t, et al.
I. On September 11, 2013, Officer Romines wa s assigned to supervise 40-50 female inmates being held pending security classi fication in the O pod of the Davidson County Correctional Development Center in Davidson County, Tennessee. Shortly after 2:30 p.m., Officer Romines ordered the inmates in the day r oom to return to their rooms to conduct a head count. Amy Guy, a recently arrested detainee , entered shortly thereafter and the roughly 30- second encounter that followed between her and Officer Romines was captured without audio by two surveillance cameras record ing from opposing directions. The recordings begin at 2:42 p.m., with Of ficer Romines addressing the inmates in the day room before going to sit behind the desk at the officer’s station. Ju st before 2:43 p.m., the inmates started to clear out of the area. Thirty seconds later, Guy entered, walked across the room, and stood in front of the officer’s statio n where the defendant wa s seated. Guy told Romines that she wanted or needed to see a nur se, although there is no dispute that Guy did not appear to be having a medical emergency. Romi nes did not respond to that request, and instead ordered Guy to go to her room. The videos show Romines gesturing and sp eaking to Guy before coming around the desk to where she was still standing. When Guy di d not leave voluntarily, Romines placed an open left hand on Guy’s right shoulde r turning her and dire cting her forward as a second corrections officer appeared behind them. It also appears that Romines already had the spray in her hand when she began the open-handed escort. During the next five seconds, Guy walked sl owly, hesitated briefly before being guided forward again, and was sprayed in the face with a chemical agent when she stopped and began to turn toward Romines. One of the videos clearl y shows that Guy’s hands were down at her waistCase No. 16-6100 3 Guy v. The Metro. Gov’t, et al. as she turned partway toward Romines. Guy can be seen reacting to being sprayed by reaching toward the spray with one hand and covering her face with the other hand. Guy quickly turned away with both hands on her face, stepped away from the officers, and was then secured against a nearby table. That was when Officer Romine s discovered she was blee ding from two scratches across her right forearm—pictures of which are in the record. Guy was taken by other officers to be seen by medical personnel. 1 Later that same day, Officer Romines brough t disciplinary charges against Guy and initiated a criminal prosecution charging Guy with misdemeanor assault on an officer by “intentionally, knowingly, or recklessly caus[ing] bodily injury ” in violation of Tenn. Code Ann. § 39-13-101. The affidavit Romines provided in s upport of the criminal warrant stated that Guy was ordered to her room “because of her actions earlier in the day for being disruptive.” After describing Guy’s refusal to leave and the open-hande d escort, the affidavit also asserted that Guy “slowly turned, and began waiving her hand trying to hit [Romines]” before she was sprayed and then “became combative [by] gra bbing [Romines’s] arm and hand.” Romines added that her arm was “scratched and cut by [Guy] during the alte rcation.” Guy’s public defender accused Romines of lying in the affidavit, and the ch arge was dismissed at the State’s request on September 23, 2013. Guy alleged that this assault ch arge resulted in further detention due to an increase in her bond and the loss of credit for time served. 2 The amended complaint asserted § 1983 claims fo r the use of excessive force in violation of the Fifth, Eighth, and Fourteenth Amendmen ts and for unlawful arrest and malicious

1 It is actually not clear from the videos whether the scratches were inflicted by Guy or when the second officer reached toward Romines’s arm from behind.
2 Romines provided a similar but not identical description of the incident in the disciplinary incident report. Plaintiff apparently admitted two of the many disciplinary violations, but claims that her admissions related only to her refusal to take a shower earlier on the day of the incident.Case No. 16-6100 4 Guy v. The Metro. Gov’t, et al. prosecution in violation of the Fourth Amendmen t. Although not brought as a separate count, the district court accepted the factual allegations as also a sserting a claim for deliberate indifference to serious medical n eed in violation of the Fourteenth Amendment. After discovery was conducted, the district cour t denied motions for summary judgment filed both by Officer Romines and the Metropolitan Government of Nashville and Davidson County, Tennessee. Officer Romines filed this interlocutory appeal.
II. Qualified immunity shields public officials from civil liability under 42 U.S.C. § 1983 unless their actions violate cl early established rights. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). The ultimate burden to prove that a defenda nt is not entitled to qualified immunity lies with the plaintiff. Kennedy v. City of Cincinnati , 595 F.3d 327, 336 (6th Ci r. 2010). To survive a motion for summary judgment, pl aintiff must come forward with evidence from which a jury could find “(1) that the o fficial violated a statut ory or constitutional righ t, and (2) the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd , 563 U.S. 731, 735 (2011); see also Pearson v. Callahan , 555 U.S. 223, 236, 242 (2009). However, this court may not exercise interl ocutory jurisdiction over an appeal from the denial of summary judgment “insofar as that orde r determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones , 515 U.S. 304, 320 (1995). As a practical matter, this means “we may not decide a challenge directly to the district court’s determination of the record-suppo rted evidence or the inferences it has drawn therefrom.” DiLuzio v. Village of Yorkville , 796 F.3d 604, 610 (6th Cir. 2015). A defendant may avoid this jurisdictional impediment by conced ing the facts in the light most favorable to the plaintiff and seeking review with respect to purely legal is sues—including whether the defendant’s actionsCase No. 16-6100 5 Guy v. The Metro. Gov’t, et al. violate a clearly established constitutional right or whether the district court’s determination is “blatantly contradicted by the record, so th at no reasonable jury could believe it.” Id . at 609 (quoting Scott v. Harris , 550 U.S. 372, 380 (2007)). A. Excessive Force An excessive-force claim may arise under the F ourth, Eighth, or Fourteenth Amendments depending on “whether the plainti ff was a free citizen, convicted prisoner, or fit in some gray area in between the two.” Burgess v. Fischer , 735 F.3d 462, 472 (6th Cir. 2013). Here, there is no real dispute that plaintiff’s claim is governed by the Fourteenth Amen dment. The district court recognized as much, plaintiff abandoned reliance on all but the F ourteenth Amendment, and defendant urges us to take judicial notice of the fact that plaintiff was being detained pursuant to an arrest warrant wh en the use of force occurred. 3
1. Constitutional Violation To establish an excessive-force claim under the Fourteenth Amen dment, “a pretrial detainee must show only that the force pu rposely or knowingly us ed against [her] was objectively unreasonable.” Kingsley v. Hendrickson , 135 S. Ct. 2466, 2473 (2015). This objective standard is not to be applied “m echanically,” and “turns on the ‘facts and circumstances of each particular case.’” Id . (quoting Graham v. Connor , 490 U.S. 386, 396 (1989)). The reasonableness determination must be made from the perspective of a reasonable officer on the scene based on what the officer kn ew at the time, and “must also account for the ‘legitimate interests that stem from [the government ’s] need to manage the facility in which the individual is detained,’ appropriately deferri ng to ‘policies an d practices that in th[e] judgment’

3 This court has previously identified “the dividing line between the Fourth and Four teenth Amendment zones of protection at the probable-cause hearin g” for pretrial detainees arrested without a warrant. See Aldini v. Johnson , 609 F.3d 858, 867 (6th Cir. 2010). Since it appears to be undisputed that plaintiff was being detained pursuant to a judicially approved warrant issued the day before the use-of-force incident, her excessive-force claim is not one that could arguably have arisen under the Fourth Amendment. Id . at 867 n.8.Case No. 16-6100 6 Guy v. The Metro. Gov’t, et al. of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.’” Id . (alterations in original) (quoting Bell v. Wolfish , 441 U.S. 520, 540, 547 (1979)). 4 Romines argued in the district court that no constitutional violation could be established because “a reasonable officer would have been ju stified in using the minimal force of a short burst of chemical agent to avoid a possible assa ult by an agitated detainee.” Defendant insisted that a reasonable officer would have perceived plaintiff’s act ions as threatening, but has conceded the facts in the light mo st favorable to plaintiff for pur poses of this a ppeal. Although defendant’s affidavit stated that plaintiff tried to hit her be fore being sprayed, defendant concedes that she did not. In fact, the video evidence shows that plaintiff’s hands were down in front of her when she stopped to turn. Ther e was also evidence that Romines received a disciplinary letter about a pres entation she made to at-risk st udents during which she said she would use a chemical spray on any inmate who did not do what she said. Viewed in the light most favorable to plaintiff, the record-supported ev idence does not blatantly contradict plaintiff’s claim that her inquires about seeing a nurse were ignored and she was sprayed without provocation after offering minimal passive resi stance to the open-handed escort. Romines does not challenge the district court’ s legal determination that a reas onable jury could conclude from these facts that her use of the chemical spray was objectively unreasonable under the circumstances she faced. 2. Clearly Established Right Taking a different tack on appeal, Romines argues that this ri ght was not clearly established at the time of the alleged violatio n. Although this argument was not made in the

4 Kingsley identified a non-exclusive list of considerations that may be relevant to the objective reasonableness inquiry: namely, (1) “the relationship between the need for the use of force and the amount of force used”; (2) “the extent of the plaintiff’s injury”; (3) “an y effort made by the officer to temper or limit the amount of force”; (4) “the severity of the security problem at issu e”; (5) “the threat reasonably perceive d by the officer”; and (6) “whether the plaintiff was actively resisting.” Kingsley , 135 S. Ct. at 2473.Case No. 16-6100 7 Guy v. The Metro. Gov’t, et al. district court, we exercise our discretion to consid er the issue because it is a legal question within our jurisdiction and resolution of the defendant ’s asserted qualified-immunity defense would further the progress of the litigation. See In re Morris , 260 F.3d 654, 663-64 (6th Cir. 2001). The essence of this argument is that the use of force in this case occurred prior to the Supreme Court’s adoption of the obj ective reasonableness standard in Kingsley . It is true that there was disagreement among the circuits prior to Kingsley about whether a claim of excessive force “brought by a pretrial detainee must sati sfy the subjective standard or only the objective standard.” Kingsley , 135 S. Ct. at 2472. But, a defendant is not entitled to qualified immunity “simply because the courts have not ‘agreed u pon the precise formulation of the [applicable] standard.” Harris v. City of Circleville , 583 F.3d 356, 367 (6th Cir. 2009) (alteration in original) (quoting Saucier v. Katz , 533 U.S. 194, 202-03 (2001)). Rather, the question under th e second prong of the qualifie d-immunity analysis “is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier , 533 U.S. at 202. Altho ugh there need not be a case directly on point, “existing precedent must have placed the statutor y or constitutional que stion beyond debate.” alKidd , 563 U.S. at 741. The right must not be define d at a “high level of generality,” and the “dispositive question is ‘wheth er the violative nature of particular conduct is clearly established.’” Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (emphasis in original) (quoting alKidd , 131 S. Ct. at 742); see also Hagans v. Franklin Cty. Sheriff’s Office , 695 F.3d 505, 508-09 (6th Cir. 2012) (explaining that inquir y must be reasonably particularized). At the time of the use-of-force incident in September 2013, this c ourt applied analogous standards to excessive-force claims brought und er the Eighth and Fourteenth Amendments. See Shreve v. Franklin Cty. , 743 F.3d 126, 134 (6th Cir. 2014). That is, under either amendment theCase No. 16-6100 8 Guy v. The Metro. Gov’t, et al. question was whether the use of force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistical ly for the purpose of causing harm. See Burgess , 735 F.3d at 473; Griffin v. Hardrick , 604 F.3d 949, 953-54 (6th Cir. 2010). The force need not have been absolutely necessary, but we asked in Griffin “whether the use of force could plausibly have been thought necessary.” 604 F.3d at 954 (quoting Whitley v. Albers , 475 U.S. 312, 321 (1986)).
In Griffin , this court held that the prison official s’ use of a leg-sweep maneuver to gain control over a pretrial detainee who created a dist urbance, resisted being moved, and struggled as two officers tried to guide her away from a nur se’s station did not vi olate this standard. Id . at 954-55. In Williams , prison officials used a chemical agen t and assault team on an inmate who was ordered to “pack up” his cell and responded by asking, “What for, sir?” Williams v. Curtin , 631 F.3d 380, 384 (6th Cir. 2011). We concluded in Williams that the facts, if true, could permit a finding that the use of force was unnecessary, was not applied in a good-faith effort to maintain or restore discipline, and was possi bly motivated by malicious purpose. Id .; see also Roberson v.
Torres , 770 F.3d 398, 407 (6th Cir. 2014) (relying on Williams to conclude that use of a chemical agent on a sleeping prisoner violated clearly established law). Viewing the evidence in the light most favo rable to plaintiff, we conclude that a reasonable officer would have been on notice in September 2013 that use of a chemical agent on a non-threatening pretrial detainee who did not comply with the officer’s verbal orders and then passively resisted an open-handed escort by he sitating and stopping to turn to ask again about seeing a nurse would amount to c onstitutionally excessive for ce. The denial of qualified immunity with respect to this claim was not error.Case No. 16-6100 9 Guy v. The Metro. Gov’t, et al. B. Unlawful Arrest and Malicious Prosecution for Assault on an Officer Unlawful arrest and malicious prosecution are distinct claims under the Fourth Amendment, but, in this case, both claims turn on whether there was probable cause to support the arrest warrant and initiat e the criminal proceeding. Sykes v. Anderson , 625 F.3d 294, 305, 308 (6th Cir. 2010). Romines contends that Guy cannot establish either claim because there was probable cause to believe she had assaulted an officer by “intentionally, knowingly, or recklessly caus[ing] bodily injury ” in violation of Te nn. Code Ann. § 39-13-101. A facially valid arrest warrant issued by a magistrate judge provides a complete defense to a claim of unlawful arrest in violation of the Fourth Amendment unless the defendant made false statements or omissions knowingly, deliberat ely, or with reckless disregard for the truth that were “material, or necessar y, to the finding of probable cause.” Sykes , 625 F.3d at 305 (quoting Wilson v. Russo , 212 F.3d 781, 786-87 (3d Cir. 2000)). Guy argued that the affidavit provided in support of the warrant had falsely stated that she “beg an waiving her hand trying to hit [Romines]” before being sprayed and that she “became combative grabbing [Romines’s] arm and hand” after being sprayed. Romines argued th at these allegedly false statements were not material to the probable cause determination because Guy was charged with causing bodily injury—not causing fear of imminent bodily injury. But, wit hout the allegedly false statements, the district court found there was a question of f act whether the affidavi t provided probable cause to believe plaintiff had caused the scratc hes intentionally, knowi ngly, or recklessly. Guy’s separate claim for malicious prosecu tion requires proof th at Officer Romines initiated the prosecution without probable cause. Sykes , 625 F.3d at 308. Romines argues that there was probable cause because she felt Guy make contact with her arm. Plaintiff claimed that any contact she made with defendant’s arm was inci dental to her reaction to being sprayed in theCase No. 16-6100 10 Guy v. The Metro. Gov’t, et al. face with the chemical agent. Th e video evidence does not blatantly contradict that claim since it showed that Romines used her right hand to spra y Guy in the face and Guy raised her arms to reach toward the spray with one hand while coveri ng her eyes with the other hand. Even if a reasonable officer could ha ve believed that Guy caused the scra tches, when viewed in the light most favorable to plaintiff, there is a disputed question of fact whethe r a reasonable officer in defendant’s position could have be lieved that Guy did so intenti onally, knowingly, or recklessly. The district court did not err in denying qualif ied immunity with respect to the claims of unlawful arrest and malicious prosecution. 5
C. Deliberate Indifference to Serious Medical Need A pretrial detainee’s claim for deliberate indi fference to a serious medical need arises under the Fourteenth Amendmen t, but it is “analy zed under the same rubric as Eighth Amendment claims brought by prisoners.” Villegas v. Metro. Gov’t of Nashville , 709 F.3d 563, 568 (6th Cir. 2013). Proving deliberate indifference requires that a plaintiff demonstrate both: (1) the existence of a sufficiently serious medical need (the objective co mponent); and (2) that the defendant “perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and th at he then disregarded that ri sk” (the subjective component). Comstock v. McCrary , 273 F.3d 693, 702-03 (6th Cir. 2001) (citing Farmer v. Brennan , 511 U.S. 825, 837 (1994)). The claim against Officer Romines is that she i gnored Guy’s request to see a nurse and instead ordered her to return to he r room just before the use-of-force incident. Although Guy is vague about the serious medical need at issue, it appears that it related to the fact that she was being monitored by the nursing staff for possible symptoms of withdrawal from Xanax, Percocet , and/or Oxycontin. In particul ar, there are records indicating

5 Defendant argued in the district court that plaintiff could not establish malicious prosecution because dismissal at the request of the state did not resolv e the criminal charge in plaintiff’s favor. Defendant has abandoned this argument on appeal.Case No. 16-6100 11 Guy v. The Metro. Gov’t, et al. that Guy was assessed by a nurse at 3:50 p.m . on September 10 and at 2:00 a.m. on September 11, but was not assessed or given medication when she was seen by a nurse at 10:30 a.m. on September 11 because she refused to cooperate with the medical staff. It was four hours later that Guy claims Officer Romines was deliberately indifferent to he r serious medical needs. Guy testified that when she approached the officer’s station sh e was feeling “weak and shaky” and was worried that she could get worse. But, Guy also stipulated that sh e did not appear to be having a medical emergency when Romines ignored her request and ordered her to return to her

room. “A medical need is objectively serious where a plaintiff’s claims arise from an injury or illness ‘so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.’” Harris , 583 F.3d at 368 (quoting Blackmore v. Kalamazoo Cty. , 390 F.3d 890, 897 (6th Cir. 2004)). The district court found a di sputed question of fact on this issue based on evidence that Romines may have been aware th at Guy had refused medi cation that morning. Specifically, the district court relied on a “Refusal of Treatme nt” form dated September 11 and apparently signed by a nurse and Officer Romines, which indicated that Guy refused medication and was warned that the possi ble consequences could includ e worsening medical conditions, permanent disability, or death. Accepting this evid ence in the light most favorable to plaintiff, however, it is not sufficient to lead a reasonable jury to infer that it would ha ve been obvious even to a layperson that Guy was in need of im mediate medical attention when she approached Officer Romines and asked to see a nurse. 6 Moreover, Guy received medical attention following the use of force and was next assessed for symptoms of withdraw al at 5:00 p.m. that same day. When a claim is essentially

6 The form also purported to include a release of liability, although it was not signed by Guy.Case No. 16-6100 12 Guy v. The Metro. Gov’t, et al. based on a delay in treatment, the plaintiff “mus t place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment.” Blackmore , 390 F.3d at 898 (quoting Napier v. Madison Cty. , 238 F.3d 739, 742 (6th Cir. 20 01)). Here, the records show that Guy was assessed by nursing staff fo ur times on September 12, twice on September 13, and twice more on September 14. But, at no time either before or after the alle ged deliberate indifference by Officer Romines di d the assessments show that Guy experienced more than mild or moderate symptoms of wit hdrawal. Guy was worried that stopping her anxiety medication could cause seizures, but she ha s not presented verifying medical evidence to establish that a detrimental effect resulted from the delay betwee n her request to see a nurse and when she was next assessed for symptoms of withdrawal. Beca use a reasonable juror could not find deliberate indifference to a serious medical need, Officer Romines is entitled to qualified immunity with respect to this claim.
III. For the reasons stated, we AFFIRM the denial of qualified immunity with respect to the claims of excessive force, unlawfu l arrest, and malicious prosecution; REVERSE the denial of qualified immunity with respect to the claim for deliberate indifference to serious medical need; and REMAND for further proceedings consis tent with this opinion.Case No. 16-6100 13 Guy v. The Metro. Gov’t, et al. CLAY, Circuit Judge, dissenting. Rather than decide the issues of qualified immunity presented by this appeal, I would simply dism iss this appeal for lack of jurisdiction. Officer Janie Romines, who is being sued fo r spraying pre-trial deta inee Amy Guy with a chemical agent, appeals the denial of her motion for summary judgment based on qualified immunity. It is well-establishe d that “[a] defendant challengi ng a denial of summary judgment on qualified immunity grounds must be ‘willing to concede the most favorab le view of the facts to the plaintiff for purpos es of the appeal.’” Thompson v. Grida , 656 F.3d 365, 367 (6th Cir. 2011) (quoting Berryman v. Rieger , 150 F.3d 561, 563 (6th Cir. 1998)). We have this requirement because “[a] district court’s denial of qualified immunity is an appealable final decision under 28 U.S.C. § 1291, but only ‘to the exte nt that it turns on an issue of law.’” Estate of Carter v. City of Detroit , 408 F.3d 305, 309 (6th Cir. 2005) (quoting Mitchell v. Forsyth , 472 U.S. 511, 530 (1985)). Moreover, “[m]ere conclu sory statements that the officers construe the facts in the light most favorab le to the plaintiff cannot confer jurisdiction upon this Court.” Thompson , 656 F.3d at 368. Because Romines continually disputes material facts instead of conceding Plaintiff’s version of the facts as re quired, I would dismiss this appeal for lack of jurisdiction. I therefor e respectfully dissent. Taking the evidence in the light most favorable to Plaintiff, the relevant facts are as follows. On September 11, 2013, Guy was a pre-trial detainee at the Davidson County Correctional Development Center , where Romines was stationed as a correctional officer. At around 2:42 p.m., Romines told the detainees, including Guy, to leave the day room and return to their cells. Rather than return to he r cell, Guy approached Romines to ask whether she could see a nurse, as she was not feeling well. Romines told Guy to return to her cell. When Guy did not move immediately, Romines appro ached Guy and began to escort her in theCase No. 16-6100 14 Guy v. The Metro. Gov’t, et al. direction of her cell. About fi ve seconds later, Guy turned he r head toward Romines and again asked whether she could see a nurse, but Romines refused to answer. Guy subsequently paused, turned toward Romines with her hands clasped in front of her, and once again asked to see a nurse. In response, Romines sprayed Guy with Freeze +P, a chemical agent. Reacting to being sprayed, Guy reached out toward Romines with her right hand in an attempt to push away the can of Freeze +P. Guy was led to a nearby table and restrained. After the incident, Romines noticed that she had scratches on her arm. She then obtained a warrant for Guy’s arrest, chargi ng her with misdemeanor assau lt. In her affidavit supporting the warrant, Romines alleged that Guy was combative and had been trying to hit her. However, Romines subsequently admitted that these allega tions were baseless. The charges against Guy were later dropped. As a result of this incident, Guy filed this suit against Romines and the Metropolitan Government of Nashville and Davidson County pursuant to 42 U.S.C. § 1983. Guy asserted three claims against Romines that are relevant to this appeal: false arrest and malicious prosecution, use of excessive force, and deliber ate indifference to a serious medical need. Romines filed a motion for summary judgment in the district court, argui ng that she was entitled to qualified immunity on the excessive force claim. The district court denied the motion after determining that the parties disputed genuine issues of material fact on each claim. In filing this interlocutory app eal, Romines claims that she concedes the facts in the light most favorable to Guy. However, her argumen ts belie this characterization. Throughout her appellate brief, Romines argues th at she perceived Guy’s actions as threatening, a fact which she uses to distinguish this case from Williams v. Curtin , 631 F.3d 380 (6th Cir. 2011), in which we held that a plaintiff could stat e an excessive force claim agains t correctional officers who usedCase No. 16-6100 15 Guy v. The Metro. Gov’t, et al. chemical spray on him when he asked a question in response to being or dered to “pack up” his cell. Id. at 384. In attempting to distinguish Williams from this case, Romines asks us to accept her contention that Guy’s movements could be s een as threatening, despite evidence to the contrary revealing that Guy had her hands clas ped in front of her when she turned toward Romines to simply ask for medical attention. “Wh en the legal arguments a dvanced 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.” Thompson , 656 F.3d at 367 (citing Berryman , 150 F.3d at 564.) Because Romines’ arguments rely on her view of the facts and not on the facts as viewed in the light most favorable to Guy, I w ould dismiss this appeal for lack of jurisdiction. Romines similarly contests facts in the cont ext of Guy’s claim that Romines subjected her to false arrest and malicious prosecution. In arguing that she is entitled to qualified immunity, Romines contends that she had proba ble cause to arrest Guy because Guy became combative and scratched Romines’ arm. Guy’s actions, according to Romines, constituted an assault resulting in an intentional, knowing, or r eckless bodily injury. See Tenn. Code. Ann. § 39-13-101. However, Guy contends that she wa s merely reacting to the Freeze +P spray in her eyes and that any scratches she may have caused were not made with the requisite mens rea . This dispute reveals that Romines is not actually conceding the facts in the light most favorable to Guy, despite her conclusory claim to the cont rary. Therefore, I would find that we lack jurisdiction over Romines’ interl ocutory appeal based on the de nial of qualified immunity. Because Romines repeatedly contests materi al facts, even though this Court can only decide purely legal issues duri ng a qualified immunity interlocut ory appeal, I would dismiss this appeal for lack of jurisdiction and remand the cas e to the district court to proceed to trial.