UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SUETTA SMITH, as Personal

Representative of the Estate of 

BRENDA SUE SMITH, Deceased,

Case No. 09-10648

Plaintiff, Honorable David M. Lawson

v.

COUNTY OF LENAWEE, SHERIFF 

LAWRENCE RICHARDSON, JR., 

SERGEANT PAUL DYE, SERGEANT 

J. CRAIG, OFFICER WENDY 

VANDERPOOL, BERNICE BAKER, 

OFFICER ADAM ONDROVICK, 

PAROLE AGENT THOMAS MOORE,

and JEFFREY STICKNEY, D.O.,

Defendants,

___________________________________________/

ORDER DENYING MOTION BY DEFENDANT

THOMAS MOORE TO STAY PROCEEDINGS

Before the Court is a motion by defendant Thomas Moore for a stay of proceedings pending

an interlocutory appeal. The plaintiff, personal representative Suetta Smith, filed the present action

in this Court alleging that the defendants are responsible for the death of her decedent, Brenda Sue

Smith, when Brenda Sue was an inmate in the Lenawee County jail. The defendants are Lenawee

County, its sheriff, jail guards, a jail physician, and defendant Moore, Brenda Sue’s parole officer.

The complaint pleads a constitutional tort under 42 U.S.C. § 1983 and gross negligence under

Michigan state law. Immediately upon being served with the complaint, Moore filed a motion for

summary judgment claiming qualified immunity under federal law and governmental immunity

under state law. The plaintiff responded to the motion stating that no discovery had been conducted

yet, although the plaintiff did not identify with specificity what she expected to learn about Moore’s

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conduct or involvement. Because the Sixth Circuit has taken the position that since the qualified

immunity defense amounts to immunity not from liability but from suit, “district courts must address

qualified immunity promptly,” Everson v. Leis, 556 F.3d 484, 492 (6th Cir. 2009), and a plaintiff

cannot resist an early summary judgment motion based on qualified immunity by filing a declaration

under Federal Rule of Civil Procedure 56(f) unless he identifies “with some precision the materials

he hopes to obtain with further discovery,” id. at 493 (internal quotation marks and citations

omitted), the Court granted the motion for summary judgment as to the section 1983 claim.

However, since governmental immunity under state law plainly is immunity from liability and not

from suit, see Walton v. City of Southfield, 995 F.2d 1331, 1344 (6th Cir.1993), and no discovery

had yet occurred in the case, the Court denied the motion without prejudice as to the state law count

against Moore.

Moore now seeks to appeal the denial of his summary judgment motion solely as to the statelaw claim. And he wants to halt the proceedings in this Court while he pursues interlocutory review.

After considering the relevant factors, discussed below, the Court concludes that a stay of

proceedings is not appropriate. The Court, therefore, will deny the motion for stay of proceedings.

I.

In determining whether to issue a stay of proceedings pending appeal, the Court must

consider “(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.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.

1991) (citation omitted). “All four factors are not prerequisites but are interconnected considerations

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that must be balanced together.” Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237,

244 (6th Cir. 2006) (citing Griepentrog, 945 F.2d at 153).

Generally, the filing of a notice of appeal from the denial of immunity divests the district

court of jurisdiction of the case, Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994), or at least

“over those aspects over the case involved in the appeal.” Griggs v. Provident Consumer Discount

Co., 459 U.S. 56, 58 (1982). However, if a district court finds the appeal to be frivolous, it retains

jurisdiction over the entire matter. See Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991)

(citing Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989)). 

In evaluating the first factor – the likelihood of success on the merits of the appeal – it is

necessary therefore to consider whether the defendant may proceed with his interlocutory appeal at

all, since 28 U.S.C. § 1291 limits jurisdiction of the court of appeals to “final decisions of the district

courts of the United States.” The collateral order doctrine treats as final those orders falling within

“that small class which finally determine claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too independent of the cause itself to

require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). In Mitchell v. Forsyth, 472 U.S. 511

(1985), the Supreme Court determined that the denial of a motion for summary judgment based on

qualified immunity can fall within the collateral order doctrine and be immediately appealable, since

“qualified immunity is in fact an entitlement not to stand trial under certain circumstances.” Id. at

525. In other words, executive immunity from federal claims may be viewed as immunity from the

burdens of litigation – from suit itself – not simply immunity from liability.

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The concept of immunity from suit is based on the doctrine of separation of powers and

arises from the recognition that executive branch officials possess “incidental powers, belonging to

the executive department, which are necessarily implied from the nature of the functions, which are

confided to it. Among these, must necessarily be included the power to perform them . . . . The

president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the

discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases

at least, to possess an official inviolability.” 3 J. Story, Commentaries on the Constitution of the

United States § 1563, pp. 418-419 (1st ed. 1833), quoted in Nixon v. Fitzgerald, 457 U.S. 731, 749

(1982). This immunity protects the executive against the burdens of litigation, not just exposure to

a damages judgment, because “diversion of his energies by concern with private lawsuits would

raise unique risks to the effective functioning of government.” Nixon, 457 U.S. at 751. Immunity

for the President is absolute, id. at 752, as it is for judges and prosecutors, see, e.g., Stump v.

Sparkman, 435 U.S. 349, 356-57 (1978) (judge possesses absolute immunity for all judicial acts);

Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976) (state prosecutors possess absolute immunity with

respect to the initiation and pursuit of prosecutions). For lower-level executive branch officials in

federal and state government, qualified immunity is the norm. Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982) (holding that “government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known”).

The nature of the immunity upon which defendant Moore bases his present appeal does not

derive from these doctrines. Instead, he challenges the plaintiff’s state-law claim by invoking statelaw immunity, which is a creature of statute. See Mich. Comp. Laws § 691.1407; Ross v.

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Consumers Power Co., 420 Mich. 567, 604 n.18, 363 N.W.2d 641, 654 n.18 (1984) (quotation

marks and citation omitted); Reardon v. Dep’t of Mental Health, 430 Mich. 398, 411-12, 424

N.W.2d 248, 254 (1988). It is apparent from reading the plain language of the statute that the

Michigan legislature chose to grant to state officials immunity from liability, not immunity from

suit. See Mich. Comp. Laws § 691.1407(1) (making “a governmental agency . . . immune from tort

liability”); id. § 691.1407(2) (stating that “each officer and employee of a governmental agency . . .

is immune from tort liability”); see also Krycinski v. Packowski, 556 F. Supp. 2d 740, 742-44 (W.D.

Mich. 2008). Appreciating this distinction, the Sixth Circuit has held that since “the [Michigan]

statute . . . discusses only immunity for governmental agencies and officers from liability, not from

suit . . . the denial of the immunity to the . . . individual officers are not final appealable orders and

therefore are not properly before us on interlocutory appeal.” Walton, 995 F.2d at 1344. 

Walton, however, has been called into question by a subsequent panel decision in Livermore

ex rel. Rohm v. Lubelan, 476 F.3d 397 (6th Cir. 2007). In that case, the defendant sought an

interlocutory appeal of the denial of a summary judgment motion based on both qualified immunity

and state governmental immunity. The Livermore panel observed that since Walton was decided,

the Michigan Supreme Court amended a state procedural rule to allow a governmental defendant

to appeal by right the denial of a motion to dismiss based on governmental immunity. Id. at 407

(citing Mich. Ct. Rule 7.202(6)(a)(v)). The panel then reasoned that it had jurisdiction to review

both the governmental immunity issue and the qualified immunity issue on interlocutory appeal

because Michigan courts treat such orders as final orders. See also Marvin v. City of Taylor, 509

F.3d 234, 251 (6th Cir. 2007) (same).

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If Moore’s appeal involved issues of both qualified immunity and governmental immunity,

Livermore might well control, even though the Livermore panel engaged in the questionable practice

of overruling the decision of a prior panel, absent intervening contrary Supreme Court precedent.

See Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) (“A panel of this Court cannot

overrule the decision of another panel. The prior decision remains controlling authority unless an

inconsistent decision of the United States Supreme Court requires modification of the decision or

this Court sitting en banc overrules the prior decision.”) (internal quotation marks and citation

omitted). But Moore has not appealed the question of qualified immunity; he could not have done

so since he was not aggrieved by this Court’s decision on that issue. Rather, Moore is attempting

to prosecute an interlocutory appeal on a question of state law alone. The Court is not aware of a

published opinion of the Sixth Circuit that would permit him to do so.

To determine whether Moore may appeal immediately the denial of his summary judgment

motion on state immunity grounds, the Court “must look to state immunity law to determine if a

denial of immunity based on state law is appealable.” Walton, 995 F.2d at 1343 (citations omitted).

“[T]he right to an interlocutory appeal from the denial of a claim of absolute or qualified immunity

under state law can only exist where the state has extended an underlying substantive right to the

defendant official to be free from the burdens of litigation arising from acts taken in the course of

his duties.” Marrical v. Detroit News, Inc., 805 F.2d 169, 172 (6th Cir. 1986). As noted above,

Michigan has not extended to its governmental officers immunity from suit; the statute prescribes

immunity from liability.

The Livermore panel suggested that the landscape is different from the time when Walton

was decided, solely because of a state court rule amendment. However, the command of Walton and

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Marrical is to examine the substantive law of the state to determine the species of immunity

conferred. The substantive law of immunity in Michigan has not changed since Walton was decided.

As another district court has observed discussing the Michigan court rule in play here, “[s]ince 1993,

when the Sixth Circuit held that Michigan substantive law did not extend to immunity from suit,

Walton, 995 F.2d at 1344, this is the only thing that has changed with respect to state-law

governmental immunity in Michigan. Rule 7.202(6)(a)(v) – promulgated by the Supreme Court, and

not the legislature – did not amend section 691.1407. It could not effect a change in Michigan’s

substantive immunity law. Nor could it dictate a matter of federal procedure. It is simply a state

procedural rule.” Krycinski, 556 F. Supp. 2d at 743. The Michigan Supreme Court has stated that

its rule-making power extends only to matters of procedure. Shannon v. Cross, 245 Mich. 220, 223,

222 N.W. 168, 169 (1928) (“A rule of court cannot enlarge or restrict jurisdiction, or abrogate or

modify the substantive law.”) (internal quotation marks and citations omitted). In fact, the Michigan

Supreme Court has declared itself incompetent to effectuate changes in substantive law by enacting

court rules. McDougall v. Schanz, 461 Mich. 15, 27, 597 N.W.2d 148, 154 (1999) (holding that

“this Court is not authorized to enact court rules that establish, abrogate, or modify the substantive

law”). Given its own declared limitations, it would be incongruous to presume that the state

supreme court modified substantive immunity law by amending a court rule. The rule itself simply

changed the character of an interlocutory appeal of a governmental-immunity-based denial of a

summary judgment motion – which had always been appealable by leave – to an appeal by right.

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The Court concludes, therefore, that there is little likelihood that the court of appeals would

have jurisdiction over defendant Moore’s interlocutory appeal of his state-law immunity claim in

this case.

Moreover, the nature of the immunity conferred by state statute does not commend itself to

inclusion within the collateral order doctrine. The requirements of that doctrine “have been distilled

down to three conditions: that an order ‘[1] conclusively determine the disputed question, [2] resolve

an important issue completely separate from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment.’” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). “The

[Supreme] Court also has noted that ‘some particular value of a high order’ must be ‘marshaled in

support of the interest in avoiding trial.’” Moldowan v. City of Warren, 578 F.3d 351, 368 (6th Cir.

2009) (citing Will, 546 U.S. at 352). This Court denied Moore’s motion for summary judgment on

the state-law claim because no discovery had been conducted in the case at that point. The question

of state-law immunity was not conclusively determined; rather, the Court simply gave the plaintiff

an opportunity to proceed with her lawsuit. See McKinley v. City of Mansfield, 404 F.3d 418, 443

(6th Cir. 2005) (holding that “the district court abused its discretion [by granting summary

judgment] because at the time of its highly restrictive discovery order, no discovery had occurred”).

Since the nature of state-law immunity is immunity from liability, Moore has no right to be shielded

from the burdens of litigation, and the interests protected by immunity from suit are absent from

consideration. The question of immunity from liability on the state-law claim cannot be determined

until the case proceeds, since that determination is integral to the merits of the dispute. And if that

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determination is adverse to Moore, he will have a full opportunity to obtain review of that decision

on appeal. 

The collateral order doctrine likely would not apply to Moore’s interlocutory appeal of his

state-law immunity claim. Since Moore seeks an appeal over a claim that falls outside the likely

jurisdiction of the court of appeals as Congress has defined it, his appeal is frivolous within the

meaning of Yates v. City of Cleveland, 941 F.2d at 449, and this Court retains jurisdiction over the

entire matter. Ibid.

II.

The other factors do not favor a stay, either. Since the nature of Moore’s state-law immunity

is immunity from liability, he would not be irreparably harmed from having to defend this lawsuit.

On the other hand, the delay occasioned by a stay may cause prejudice to the plaintiff, and quite

possibly, to the other defendants. See Johnson v. Jones, 515 U.S. 304, 309 (1995) (noting that the

disruption caused by interlocutory appeals is the primary policy underlying the general rule against

piecemeal appeals). Finally, the public interest would not be served in granting the stay, since

prompt disposition of claims, especially those involving public servants, better advances the general

welfare than does delay in disposition.

III.

The Court finds that the relevant factors point toward the continuation of the lawsuit in this

Court. 

Accordingly, it is ORDERED that the defendant’s motion for a stay of proceedings [dkt #

28] is DENIED. 

s/David M. Lawson 

DAVID M. LAWSON

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United States District Judge

Dated: November 3, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on November 3, 2009.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO

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