NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0263n.06 No. 10

- 6216 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J OHN JONES, Plaintiff-Appellee ,

v. EDWARD YANCY, Off icer , I ndividually

and as a n Offic er of the City of Memphis Police Depa rtment; J ERRY W AL KER, Offic er, Individually and as a n Offic er of the City of Memphis Police Depa rtment, Def endants-A

ppellants, and L ARRY A. GODWI

N, I ndividually

and in his capa city as Police Dire ctor for

the City of Memphis Poli ce D epar

tment; CI TY OF MEMPHI S, Def endants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEFORE: COLE an d ST RANCH, Cir cuit Judges; ZATK OF F , District Judge. * JANE B. STRANCH, Circuit Judge. Def endants-A

ppellants Offic ers Edwar d Yanc y and J err y Walker appea l the district court’s denial of their motion for summary judgme nt on claims that they used excessive forc e i n ar re sting Plaintiff-Appellee J ohn J ones. Be cause the question of qualified immunit y prese nted by the office rs’ interlocutory appea l depends entirely o n a d i s p uted version of the fac ts, we have no jurisdiction to enter tain it. Acc ording ly , the appea l is DISMISSE D

. The Honora

ble L awr enc e P

. Zat k off, Senior United States District J udg e for the Easter n * District of Michig an, sitting by desig nation.No. 10-6216

Jones v . Y

ancy, e t al.

BACK GR OUND On the evening of April 8, 2006, J ohn J ones was involved in a motor vehi cl e acc ident in Memphis, Tenne ssee. Whil e J ones was driving on Prescott Street, another vehicle made a wide turn into his lane, forc ing him to run off the roadw ay and strike a utilit y pole. J ones did not rema in at the

scene of t he accident. Dar ron Easley , a nearby re s i d en t wh o hear d the crash, gave J ones a ride to J ones’ home so that he could ca ll his brother (the owne r of the vehicle J ones was driving ) and g et money to have the vehicle towed. J ones did not rep o rt t h e ac ci d ent to the Memphis Police Depa rtment. By the time J ones returne d to the scene of the acc ident, however, a police service technicia n had arr ived. The tec hnician aske d J ones for his dr iver’s license, which J ones could not locate. The parties vigor ously dispute what happene d next. J ones tes t i fied in a deposition that shortly afte r he returne d to the scene of the acc ident, Offic ers Yanc y and Walker arr ived and asked him for his driver’ s license. After J ones unsucce ssfully sear ched the veh i cl e fo r t h e license and informed the office rs of his inability to locate it, the office rs p l ac ed J ones in handcuf fs. J ones testified that he did not resist arr est at any time. Nonethele ss, J ones claims that the office rs “peppe r spray ed” and repe atedly beat him acr oss the head and back. R92-10 at 36–37, 44. He also testified that the office rs “r[ode] [hi m] down to the g round” on his knees, despite being told that J ones could
not g et down on his kne es due to a pree x isting injury

. R92-10 at 96–97. J ones was then place d in the back of a p o l i ce car and taken awa y . He claims to have suffe red multipl e injuries from the incident, including a broke n fing er a nd a broke n rib.

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Jones v . Y

ancy, e t al. Easley , who witnessed the incident, offe red deposition testimony larg ely supporting J ones’ version of events. He testified that J ones “wa sn’t disorderly ,” R104-2 at 17, that he never saw J ones try to strike the police office rs, and that the police “[s] lammed him down” on the trunk of the police

car and “wa s very abusive,” R104-2 at 38–39. An aff idavit executed by Easley short l y af ter the incident spec ifically

alleg ed that he sa

w one of the office rs “slam[] him down” on the trunk of the police car “about two times” and hold “Jones’ arm or hand in a position wher e [Easley ] believed they

wer e g oing to br eak it.” R86-6 a t 2. The office rs tell a differ ent story

. They claim that J o n es ref used to sign a traff

ic ticket, requiring them to place him under arr est. Yanc y testified that J ones told them “f- -- y ou, I ain’t g ot to g ive y ou s -- -. ” R92-11 at 70. As they attempted to arr est J ones, the office rs claim that J ones resisted, “try ing to pull awa y ” and “g et awa

y .” R92-12 at 62. Yanc y testified that J ones “pull ed loose [and] took a swing at Offic er Walker” and that they all “start[ed] fig hting” as the office rs tried
to g et J ones in the police car . R92-11 at 70. After being unable to subdue him, Offic er Walker used pepper spray on J ones. Both office rs testified that the pepper spra y wa s u s ed befor e J ones was handcuf fed. A lthough Walker

claimed that they

never used phy sical for ce on Jones, and dis puted the alleg ation that they slammed J ones on the back of the police car , Yanc y seeming ly acknow ledg ed slamming Jones on the trunk of the c ar in orde r to g et him handcuf fed. On April 3, 2007, J ones filed this suit in the Western District o f T en n essee , asser ting a number of claims rela

ting to the incident. As rele vant here , J ones broug ht a claim under 42 U.S.C. § 1983 ag ainst Offic ers Yancy and W alker , alleg ing that they used ex cessive force ag ainst h i m i n

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ancy, e t al.

violation of the Four

th Amendment. The o ff

i ce rs moved for summary judgme nt on Fe bruar y 1, 2010, claiming entitlement to qualified immunit y . On Aug ust 27, the district court gra n t ed t he office rs’ motion for summary judgme nt in part and denied it in part. The court g rante d the office rs’ motion as t o J ones’ claims that the officers violated his Four teenth Amendment rig hts and lacked probable cause to arr est him. The court, howeve r, denied the office rs’ motion as to J ones’ excessiveforc e claim, cit ing case law establishing that the unnece ssary use of forc e on a non-re sisting individual, particula

rly pepper spray , violates the Fourth Amendment. The court summarized the “diametr ically opposed versions of what occur red on April 8, 2006,” R118 at 16, and conclude d that, “taking the view of the fac ts most favor able to the Plaintiff, J ones was the victim of an unprovoked attack that resulted in his being pepper spray ed and slammed into the patrol car well afte r he was in handcuf fs, ” R 1 1 8 at 18. I n light of this fac tual dispute, the court held that the office rs wer e not entitled to summary

judgme nt on qualified immunity g rounds. On September

23, the offic ers f

iled this ti mely

interlocutory

appea l. ANALYSIS We beg in—and end—our analy sis by considering whether we have jurisdiction to enter tain this appea l. The jurisdiction of this Court under 28 U.S.C. § 1291 g ener ally extends only to “appe als from

. . . final decisions of the district courts.” Consequently , interlocutory order s deny ing summary judgm en t usually do not satisfy this jurisdictional require ment. Ortiz v. Jordan , -- U.S. --, 131 S. Ct. 884, 891 (2011).

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A “limited exception” exis ts, howeve r, for cer tain denials of summary judgme nt on qualified immunit y g rounds. Id. (citing Mitchell v. Forsyth , 472 U.S. 511, 525–26 (1985))

. As the Supreme Court explained in Johnson v. Jones , 515 U.S. 304 (1995), we have jurisdiction ove r appea ls f rom denials of qualified immunit y to the extent they raise “pure ly leg al issue[s] ,” such as what law was “c l early established” at the time the defe ndant alleg edly acte d. Id. at 313. We lack jurisd i ct i o n , howeve r, to consider “a district court’s summary j u d gm en t order insofar as that order deter mines whether or not the pre trial rec ord sets forth a ‘g enuine’ issue of fact for trial.” Id. at 319. “Unde r Johnson , t h er ef

ore, a deter

mination that a g iven set of fac ts violates clea rly established law is revie wable, while a deter

mination that an issue of fac t is ‘g enuine’ is unrevie wable.” See v. City of Elyria , 502 F.3d 484, 490 ( 6th Cir. 2007). As J ones correc tly points out, the officers’ appea l prese nts no pure leg al i ssue for review

. Th e o ff i ce rs do not arg ue that the fac ts as alleg ed by J ones fail to establish a violation of clea rly established constitutional law. I nstead, the office rs’ appea l is based entirely on their arg ument that “the district court should have acc epted the Offic ers’ version of the events and g rante d their Motion fo r S u m mary J udg ment.” Appellants’ Br

. at 8–9. This is prec isely the ty pe of interl o cu t o ry appea l—challeng ing the fac tual basis for the district c ourt’s finding of a g enuine issue of materia l fac t—over whic h we ha

ve no jurisdiction under Johnson

. The office rs contend that the Supreme Court’s post- Johnson decision in Scott v. Harris , 550 U.S. 372 (2007), g rants us jurisdiction to consider this appea l. I n Scott , the Supreme Court held that

a district court should n o t view the fac ts in the light most favor able to the nonmoving party for

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purposes of ruling on a motion for summary judgme nt if that party ’s version of events is “blatantly
contra dicted by the rec ord, so that no rea sonable jury could believe it.” Id. at 380. The Supreme Court conclude d that the district court err ed in that case by adopting the plaintiff’s version of events beca use it was “quite clea

rly contra dict[ed] ” and “utterly discredited” by a videotape of the incident. Id. at 378, 380. Although we have i nterpre ted Scott to permit us to exercise jurisdiction over inter locutory appea ls from denials of summary judgme nt in those “ra re” case s wher e the district court makes a “blatan[t] and demonstrabl[ e] err or” in finding an is sue of material fa ct, W ysong v. City of Heath , 260 F. App’x 848, 853–54 (6th Cir. 2008), the prese nt case falls well short of satisfy ing this narr ow exception. The office rs argu e that the district court committed “blatan[t] and demonstrabl[e] err or” beca use “J ones failed to offe r any signific ant, probative evidence to support the allega tion that he

was pepper spray ed afte r he was handcuf fed and compliant.” Appellants ’ Br

. at 11. We are not persua ded. J ones repe atedly testified that the office rs pepper spray ed and beat him despite the fac t that he put up no phy sical resistanc e to arr est. Much of J ones’ testim o n y wa s co rroborated by Easley , an unrela ted witness, who testified that, althoug h J ones “wa sn’t disorderly ,” R104-2 at 17, and never tried to strike the police office rs, the office rs “[s] lammed him down” on the trunk of the police car and wer e “ver

y abusive,” R104-2 at 37–39. Fur thermore , J ones specific ally testified that he “believe [d] ” the office rs place d him in handcuf fs befor e spray

ing him with pepper spray . R92-10
at 36. And while J ones ac knowledg ed that he w as “not sure” about the timing of the handcuf fing ,

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R92-10 at 36, that acknow ledg ment hardly establishes that the district court committed a “blatan[t] and demonstrabl[e] er

ror” in finding a

n issue of mater ial fac t as to whether the offic ers a cted with excessive forc e, particula rly g iven the other testimony indicatin g t h at J ones was compliant at the time of the office rs’ alleg ed actions. “Abse nt such err or, this court may not revisit the fac tual basis behind a denial of summary judgme nt.” Landis v. Phalen , 297 F. App’x 400, 404 (6th Cir. 2008). The disputed issues of mate rial fa ct in this case a re f or a jury to decide, not f

or a c ourt. CONCLUSION On this rec ord, the question of qu al i fi ed i m munity depends entirely on the district court’s deter mination that the rec ord sets forth a g enuine issue of materia l fac t. Be cause we lack jurisdiction to reviewthat fac tual deter mination, we DISMISS the appe al.

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