* The Ho nora ble B obb y R. B aldo ck, C ircuit Judge of t he United State s Court of Appeals for the Tenth Circuit, sitt ing by designati on.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0235P (6th C ir.) File Name: 04a02 35p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
D AVID J. S COTT ,

Plaintiff-Appellee,

v.

P ATRICK C HURCH ILL , Insp ector, Ca

rson City Regional Facility , et al.,

Defenda nts,

P HILI P B AIR , Defenda nt-Appel

lant. X - - - -
> , - - - - - - - - N No. 03-2427

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 95-00571—David W. McKeague, District Judge.

Argued: June 11, 2004 Decided and Filed: July 23, 2004

Befor e: SIL ER, MOORE, and BAL

DOCK, Circ

uit Judges. * 2 Scott v. Ch urchill, e t al. No. 03-2427

_________________ COUNSEL

ARGUED: Kevin R. Himebaugh, OFF IC E OF THE ATTORNEY GEN ER AL, Lansing, Michiga n, for Appellan t. S. Grace Davis, MILLER , JO HNS ON, SN ELL & CUMMISKEY, Grand Ra p ids, Michigan, for Appellee. ON BRIE F: Kevin R. Himebaugh, OFFI CE OF THE ATTORNEY GENERAL, L ansing, Michigan, for Appe llant. S. Gra ce D avi s, D avi d R. Cle vel and , MI LL ER, JO HNSO N, SN ELL & CUMMISKEY, Grand Rapids, Michig an , for Appellee.

_________________

OPINION

_________________ KAREN NELSO

N MOORE, Ci

rcuit Judg e. Defe

ndantAppellant Philip Bair (“Bair”) appeals fr om the denial of qualified immunity in Plaintiff

-A ppellee David J. Scott’s (“Scott”) § 1983 suit a

gain s t him. Scott, a prisoner at the Michigan Department of Corre ctions Carson City Regional Fa ci li ty, allege s that Ba

ir, a gu ard at t he fa cility, retaliated againstScott’s exercise of his First Amendment rights by filing a false

major mi sconductticket ag ainst Scot t. This is the third time

this court has heard an appeal in this case on the issue of the proper standard gov e rning pr isoner F irst Amendment

retalia tion claim s; conteste d in this ap peal is the standard that would have been apparent to a re asonable officer when th e und erlying

events took place, in July of 1995. Because this court’s case law in J u ly o f 1995 wou

ld have put a rea sonable o fficer on fair warning that

his conduct
was illega l, the den ial of qua lified immu

nity is AFFIRMED

.No. 03-2427 Scott v. Ch urchill, e t al. 3

1 Th ere seems to be some conf usion i n Scott’ s mater ials as to wh en the event s t ook pla ce, on Jul y 6 or July

7. The date s on ea ch of the pris on for ms indica te that the inc ident t ook pla ce and the Misconduct Charge

was filed on July 6. A lthoug h T hom as’s affida vit in dicate s that he

over heard this conversation on the morning o f July 7, the conversa tio n itself could only have happene d on July 6. G iven tha t Tho mas’s a ffidavit

was filed a yea r after the in ciden t, it is reason able to ass ume that thi s was an insign ificant erro r, rather th an evid ence of unre liability.

I. BACKGROUND

As the nonmoving pa rt y, it is Scott’ s version of the fa cts whi chmust be re lied upon. On July 6, 1995, Sc ott wa s required to mee t with a hearing officer on a n unrelated

m isco nduct

ticket. U

pon Scott’ s checki

ng in with

Bair to gain entry to the

building , Bair sa

id to Scott of his misconduct ticket, “[T]hatdoesn’t s

urprise me.” Joint Appendix (“J.A.”) at 174. Scott asked

Bair to explain this remark and indicated that he was con si dering filing a grieva nce against Bair. At that point, Bair walked over to where Scott was standing and stated, “You don’t know who you’ re f---ing with.” J.A. at 34. Bair then grabbed the back of Scott’s nec k and continued, “You want to f--- with me, b----!”. J.A. at 34. Later that da y, Scott submitted a

grieva nce ag ainst Ba

ir, rec iting fa

cts consistent with his l a ter allegations in the complaint. The following day, on

July 7, Bair filed a Major Misconduct Charge a gainst Scott for insolence. A Major Misconduct C harge can result in a higher security classification, placement

in administrative segregation, or for fei ture of good-ti me credits. On July 27, a hearing was held on the Misconduct

Charge, and thecharge was “not sustained,” with the he ari ng officer indicating that B air’s credibility wa s “questionable,” relying

in part on the fact that the Misconduct Charge was filed “24 hours later, after the inmate had claimed to have been assaulted.” J.A. at 147.

S cot talso submitted below an affidavit from a fellow inmateat the facili ty, Richard F. Thoma s (“Thomas”), who claims t o h av e o ve rh ea rd a c on ve rs at io n o n J ul y 6 1 between 4 Scott v. Ch urchill, e t al. No. 03-2427

Bair an d another guard, Dale Fe ldpausch (“Feldpausch”). Thomas stated

that Bair described

the events of the morning to Fe ldpausch , consona

nt with Scot

t’s versi on of the f

acts

. Bair told Feldpausch

that he did not

like Scott, due to Scott’s repeated conflic ts w ith Feldp ausch ov er Scott’ s jailhouse lawyer activities. Feldpausch rec om mended to Bair tha t in order to cover up his wrongdoing, Bair should wr i te a false ticket against Scott, alleging

that Bair ha d patted d own Scott after a verbal t

hreat — t

he versi on of eve

nts Bair would ultimately

write up i

n the Misc onduct Cha

rge. T homas als o sta ted that Fel dpausch

had told B air that t

o conce al mo r e effectively

his wrongdoing, Bai r should ha ve immedia

tely writtenthe false ticket and taken Scott to a d ministrative segregation.

OnAugust

16, 1995, Sc ott filed s

uit pro se againsta host of defenda nts on variou s claims, i

ncluding a claim a gainst B air for retaliation against Scot

t ’s exercise of First Amendment ri ghts. The distr

ict cour t initially

dismissed Sc ott’ s complain t, on August 31, 1995. In response t o a mot ion by Scott for rehearing , the distr i ct court reinstated Scott’s Fourtee nth Amendment an d F irst Amendment retaliation cl aims but affirmed the dismissal of his Eighth Amendment claim. Scott file d an amen ded compl aint, and

on Augu st19, 1996, the defe nd ants moved to dismiss or for summary judgmen t, which latter motion was granted on A ugu st 28, 1997. This

was a grant o f summary

judgmen t on the me

rits, rather than on the basis of q

ualified immunity . Scott

appealed to this cour

t, wh ich initially affirmed the g rant of summary judgment in an unpublished order dated Decembe r 9, 1999. SeeScott v. Ch urchill
, No. 97-2061, 1999 WL 1206937 ( 6th Cir. Dec. 9, 1999). Scott filed a motion for rehearing, which
was granted in a second unpublished order, on April

6, 2000. The order affirmed the dismissal of most of Scott’s c laims, but, applying the

s tandards of Thaddeus-X v. Blatter , 175 F.3d 378 (6th Cir . 1999) (e n banc), reinstat

ed Sc ott’ s retaliation

claim agai nst Ba ir and remanded the case for further proceedings. See Scott v. Ch urchill [ Scott I ], No. 97- 2061, 2000 WL

519148 (6 th Cir. Apr

il 6, 2000). On remand,No. 03-2427 Scott v. Ch urchill, e t al. 5

counsel was appointed for Scott, and Bair filed for summary judgmen ton th e b as is of qu al if ie d i mm un it y on Ju ly 2 4 , 2000. That motion was granted on March 29, 2001, on the basis that the clearly

established lawat the time of the incident would have put a re asonab le offic er on noti ce only that behavior “shocking to the conscienc e” could supp ort a retaliation

claim. Scott appealed again to this cour t; six weeks before

the case was arg ued, th is c ourt issued Bell v. Johnson
, 308 F.3d 594 (6th Cir. 2002), holding that in 1994, the “shocks t

he consc ience”

test was not

the c lea rly established

law gov erning

retalia tion claim s , a nd that some lesser standard governed the quali fied immun it y determinat i on. The panel deciding Scott’s appeal relied on Bell in reversing the grant of summary judgmen t on the ba sis of qu al if ie d i mm un it y. In an unpublished opinion, the panel stated that

The [ Bel l ] court concluded that as early as 1989, the applica ble standard for evaluating an adve rse actio n undertaken

in retaliation for an individual’s exercise of his or her First Ame

ndment rig

hts is whether

it is capa ble of deterring a person of ordinary firmness from exercising [such] rights . . . . I n lightof Bell , we REVERSE the district court’s decision, and REMAND to the district cou rt for reconsideration.

Scott v. Church ill [ Scott II

], No. 01-1625, 200 3 WL 77208, *1-*2 (6th Cir. Jan

. 8, 2003) (internal quotation marks omitted). Upon remand for reconsideration, the parties briefed the qualified immunity issue in light of Bell and of the remand, and the district court denied qu alified i mmunity to Bair. B air timely

appeals

. 6 Scott v. Ch urchill, e t al. No. 03-2427

II. ANALY SIS

A. Standard of Review

We review

de novo the denial of summary judgment on the basis of qualified immunity. Bukowski v. City of Akron , 326 F.3d 702, 707 (6th Cir. 2003). Such a de nial, to the exten

t it turns upo n issues of law an d not of dis

puted fa ct, is immediate ly

appeala ble as a final order. Mitchell

v. Forsy th
, 472 U.S. 511, 530 (1985); Weaver v. Shadoan , 340 F.3d 398, 406 (6th Cir. 2003).

B. The Elem ents of a Retaliation C laim

Under Thaddeus-X

, in or der to establish a First Amendment retaliation

clai m, a pr isoner must demonstrate that he was (1) engaged in protected c onduct; (2) that he suf fer ed an adverse action; and (3) that a c ausal connec tion exists between the protected conduct and the adverse a ction. 175 F.3d at 394. In order for the reta liation to b e actionable, it must be “ca

pable of deterr ing a pe rson of or dinary firmness fromexercisin

g his or her rig

ht to acc ess t

he court s. ” Id. at 398. At this point in

the litig ation, it is

settled that Scott

has made out a cas e that c a n survive summary judg ment on the

m erits; the only remaining question is qualified immuni ty

. An official defendant in a § 1983 suit is entitledto qualified immunity if her conduct

“does not violate clearly

established statutory or constitutional rightsof which a reasonable person would have know n.” Bell , 308 F.3d at 601 (internal quotations omitted).

C. The Effect of the Prior Panel Decision

Scott argues as a prelimi

nary matter that Scott II

, containing the statement that under Bell v. Johnson , th e cl early established

right a t the time o f the eve

nts underl ying the instantcase was to be free from adv erse action which would have deterr

ed a person of ord

inary firmness from ex ercising First Amendmen

t rights, was binding upon the district courtNo. 03-2427 Scott v. Ch urchill, e t al. 7

and is binding

upon thiscourt. He cites the doctrine of law of the case, in particular the mandate r ule, and aline of cases holding that where a party f ails to seek reconsideration of an opinion containing a misstatement of law or fact, sheforfeit s the right to argue

that the o

pinion wa s errone ous in subseque nt proce edings.

Bell nowhere make s the explicit statement that the Thaddeus-X

stand ard is to be used when judging whether stateoffice

rs’ acti ons violat

ed cle a rly established law a t the time of the incident s in Be ll , and by extension in this case. Instead, Bell

indicat es that the “shocks the conscience” standard is not to be us ed, r elies on two cases, Gibbs v. Hopkins
, 10 F.3d 373 (6th Cir. 1993), and Newsom v. Norris , 888 F.2d 371 (6th Cir. 1989), as cl early e s tabli shin g a prisoner’s right to be free from ret aliation f or exerc ising Fi

rst Amendment rights, and

holds that the events at

issue in Bell

—a se arch of

a prisone r’s cell and conf iscation o f his lega l papers and medical diet snacks — meet the threshold level of retaliation

established in Gibbs and Newsom

. Bell , 308 F.3d at 608-13. Therefore, Scott II ’s sta temen t regard ing Bell is not a correct description of Bell ’s holding. Scott argues that the prior pa

nel’s sta tement sho

uld nonethel ess control when assessing whether Bair’s actions were obje ctivel y unreasonablein the fa

ce of cl e ar ly established law. Scott I held explicitly that Scott could survive summary judgme nt on the merits of his claim under the Thaddeus-X standard; therefore, if Scott II ’s assertion that the Thaddeus-X

standard
was the clearly

established law of this c ircuit in 1 988 is binding as law of the case, Bair’s claim of qualifie d immunity
necessa rily fails, wi thout fur ther ana lys is.

T he law-of-the-case doctrine “posits that when a court decides upon a rule of law, t hat deci sion should

continue to govern the same issue s in subseq uent stag es in the s ame case.” Arizona v. California , 460 U.S. 605, 618 (1983). However, the doctr

ine mere ly

“directs a cour

t’s discr etion, it does not limit the tribunal’s power .” Id. ; see also Gillig v. Advanced Cardiovascular Sys., Inc ., 67 F.3d 586, 589- 90 (6th 8 Scott v. Ch urchill, e t al. No. 03-2427

Cir. 1995). “ In e ssence, the manda te rule is a specif

ic applicationof the law-of-the-case doctrine.” United States v. Campbell
, 168 F .3d 2 63, 265 (6 th Cir. 1999 ). “The basic tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the court of appeals.” Id. The scope of a remand

is determined by e

xamining the entire order or opinion, to

determine whether

and how the court of appeals intended to limit a re

mand. Id. at 266-68. In the instantcase, o ur opin ion in Scott I had already

determined that Scott’ s ret aliation claim against Bair could survive summary judgment under the T

haddeus-X standard; had the panel of our court

meant in Scott II

to hold that the ThaddeusX standar d was th e ap propriate one to be used in gauging qualified immuni ty, o ur panel presumably would have
rem an ded with instructions to deny Bair’ s motion and proceed to trial. Instead, the opinion as a whole makes clear that the district court

is to reconsider Bair’s motion “[i]n light of Bell .” Scott II

, 2003 WL 7720 8 at *2. “The issue presented by Scott [the appellant in Scott II ], and res olved in Bell
, is the applicability of the ‘shocks the c onsci en ce’ standard to prisone

r First A mendment

retalia tio n claims alleging conduct in 1995.” Id. at *1. Given the discretionary nature of the law-of-the-case doctrine, the clear misstatement of Bell ’ s holding by Scott II , and the failure of Bair’s q ualified immunity claim under Bell ’s act ual ho ldin g, a s detailed below, we decline

to consider Scott II ’s statement as binding upon the district court below or on this court now.

Fi na ll y, Scott cites to cases which take a dim view of a party’s assertion that a previous pan el opinion made a misstatementof lawor fact in a subsequent appeal where no motion for reconsideration under Fede ra l Ru le of App ellate Procedure 40 was filed. See Campbell v. United States , 592 F.2d 309, 312 (6th Cir. 1979) (a part y “may not ig

nore [Fed. R. App. P. 40]”

and atte mpt to seek

reconsi d e ration of a ruling thro ugh subseque nt litiga tion); United States v. Gargotto , 510 F.2d

409, 412 (6th Cir. 1974) (“In the absenc e of [a pe t ition under Fed. R. App. P. 40], those issues cannot be re-considered”). These cases add little to Scott’s initialNo. 03-2427 Scott v. Ch urchill, e t al. 9

law-of- the-ca se argument: Bair could have re asonab l y believed that the case was being remande d for briefing to the districtcourt o n the issue of qualified immunity in light of B ell
, and not in l ight of t he less than accu

rate sta teme nt o f Bell ’s holding in Scott II. D. Qualified Immunity Under Bell

The district court in the instant ca se, afte r this cou rt’s fir st remand in Scott I

, held that the clearly

established

law at the time of the incident was the “shocks the conscience” standa rd. Onappeal, Scott II

noted tha t Bell had effectivel y overruled that legal conclusion, and remanded for consideration in light of Bell

. Bell

relied on two cases in concluding that behavior short of that which “shoc ks th e consci ence” was clea rly established

as unlawful in 1 994, the ti me of the incident s in Bell : Gibbs , 1 0 F.3d at 378-80, and Newsom , 888 F.2d at 374-77. In attempting

to disting uish his ca se from Gibbs and Newsom , Bair fi

rst argue s that Gibbs and Newsom provide no clear standard, and thus qualified immunity must begranted

— an argument clearly

foreclos edby Bell . Bair then argues that ne it he r c as e i s f

ac tu al ly simila

r to his, focusing on the type of adver

se action taken — t

he fil i ng of a

false misconduct

charge aga

inst the prisoner — rather than the protected conduct at issue. In Gibbs , plaintiff prisoner alleged t hat he was kept in administrative segrega tion as retaliation for his activities as a jailhou se lawy er, 10 F .3d at 378 -80; in Newsom , plaintiff prisoners alleged t ha t they had not been reappointed

to their positions as inmate advisors in retaliation for co mp la in ts th ey h ad m ade about the Chairman of the Discipli nary Board, 888 F.2d a

t 374-77. I

n attempti

ng to distingu ish the situation at bar

from Gibbs and Newsom , Bair argues that Scott s

uffere d no tangible har m. But this argum ent is misguided: Bair could not know at the time he committed

the unconstitutional action, filing a misco nduct charge, that Scott would be exonerated of that charge. That S cott may have suf fered l ess harm

than othe r plaintif fs ma y be relevant in determining whether o r n ot he has a claim on the merits of a co nstitutional violation, but that Bair’s 10 Scott v. Ch urchill, e t al. No. 03-2427

unconstitutional action was ultimately unsucc essful does not make Bair’s

action a ny l ess unconstit

utional. Circumstances outside Bair’s control stopped his attempt at retaliation

from beingperfected, but had Bair perf ormed the exact same action and the hearing officer no t clea red Scott of misconduct charg es, Scott would have faced disciplinary segregation or the loss of g ood-ti m e credits — which would necessarily be
ana ctio nable harm after Gibbs , where plaintiff made out a claim after hav i ng been kept in administrative segregation. Qualified immunity should be judged based on the actions of the officer and t

he reasonably

foreseeable consequence s of those actions, n ot subs equent events outside of the officer’s control. The injur

y a ctually suffer ed goe s to the mer

its of the claim, the sufficiency

of which to survive summary judgme nt is a settled question in this case.

Particula rly destructiv e to B air’s claim that the type of adverse action he took ag ainst

Scott is determinat

ive is Cale

v. Joh nson , 861 F.2d 943, 948-51 (6th Cir. 1988). C ale
, whichthe Bell

defendants relied upon, an d w hich the Bell court took pains to distinguish, hel d that an officer’s unsuccessful attempt to

frame a prisoner

through the filing of
a false misconduct charge in retaliation for complaining about prisonfood was itself action “shocking to t he conscience.” Alth ough Bair a cknowle dges tha t Cale is “remotely on point,” he argues that it is “ easily distingu ishable” because in Cale
, false evidence was planted on the prisoner, and in Cale
, the prisoner was taken to administrative segregation pending his hearing. Appel la nt’s Br. at 19. Ba ir’s atte mpt to distingu ish Calefactually is unconvinc ing — after Hope v. Pelzer
, 536 U.S . 730, 741 (2002), the distinction between attempting to frame an inmate for a misconduct charg e by planting evidence on his person and attempting to frame a n inmateby g

iving fa lse testimony i s one witho ut a difference. (“[O]ffic ials can

still be on notice that their conduct violates established

laweven in novel factual circumstances.”) Id. As to Cale’s detention in administrative segregation, once a gain, Bair’s argume nt goes t o the harm

Scott suff

ered, a nd thus to the ultimate determination of the merits of his claim, and notNo. 03-2427 Scott v. Ch urchill, e t al. 11

to whether Bair’s actions were unc ons titut ional in light of clearly established la

w. In Cale

itself, our focus was not on the brief detention in administrative s e greg ation whic h Cale suffered, but instead upon the “danger of further loss of liberty through disciplinary

detention and through the loss of good-ti me credit as a result of the charges filed aga inst him.” 861 F.2d at 9 49-50; see also id. at 950-51 (in summation
, noting only that Cal e “was subject to the possibility of disciplinary

sancti on s and a re sulting lo ss of liber ty a s a consequence of th e allege d actions ,” and no t advert ing to administrative segregation). Cale , decide d in 1988, c learly establishes that the mere potential threat of disciplinary sanctions is sufficiently adver se action to support a claim of retali ation. Even had the false misconduct charge been sustained against Cale, however, that cas e would sti ll clearly establish that the f

alse issua nce of a misconduct charg e is unconstitutional retalia

tion; that B air did no t do a par ticularl y good job of fr aming Sc ott does not make his actions any

less cul pable, and events outside of his control (i.e., the hear in g officer’s ultimate determination) do not vitiate the “the danger of further loss of liberty” to which B air subjected Scott. See id. at 949. Despite Cale ’s clear applicability , Bair claims that Brown

v. Crowley , 312 F.3d 782 (6th Cir. 2002 ), was the first ca se that wou ld hav e given warning that his behavior wa s unconstit utional, and Bai

r notes the vigor

ous diss ent in that case, arguing that as jud ges disa gree on whethe

r certa in behavior was u nco nstitutional, he cannot be expected to know that such behavior wa s unlawfu l. The fa

tal fla w in this argume nt, however, is that

the Brown casedid not contain any of the specific

evidenc e of ret

aliatory motive and deliber

ately falsified charges that Scott presents in the instant case, a fact noted even by the Brown diss ent in dist ingui shin g Cale

. See Brown , 312 F. 3d at 7 99 (Ro sen, J ., di ssent ing) (distinguishing Cale from Brown because Cale “feature[d] direct evidence of reta li atory

cond uct” and o f the

prison off

icia l’s “ acti ve[] abuse[ of] his position of au thorit y” by manufacturing evidence). Here, of c ourse, Scott asserts, and Thomas 12 Scott v. Ch urchill, e t al. No. 03-2427

provides indep ende nt verifi cation, t hat Bair deliber ately framed Scott thro

ugh fa lse testimony, and that B air did so with th e spec ific inte

nt of dete rring Sc ott from a sserting his First Amendment rights of grievanc e.
Under Gibbs and Newsom , which Bell directs t his court to look to, and under Cale as well, Scott’s right to be free from retaliation, in the for

m o f the issuance of a false major misconduct

tic ket, ag ainst the e xercise o f his First Amend ment

rights was clearly

established, and Bair is not
en ti tl ed to qu al if

ie d i mm un it y. E. Other Issues Raised By the Parties

Bair argues on the last full p age of his brief that is he i s additiona lly entitled to qualified

immunity on his conspiracy
c laim, wh ic h h e a ls o s ee ms to ar gu e w as di sm is se d b y th e di strict court in an earlier stage of the litig ation and never reinstated by t he circ uit court. See Scott II

, 2003 WL 77208, at *1-*2 (noting civil c ons piracy claim dism

issed on ba sis other than qual ified immu

nity but reversing district court’s decisionwithout l i mitation); Scott v. Bair , No. 1:95 cv 571, slip op. at 10-11 (W.D. Mich. Mar. 29 , 20 01), J.A. at 179, 188-89 (dismissin

g plainti ff’s conspiracy

claim on grounds other than qualified immunity). Howeve r, in den ying qualified immu n ity, the magistra

te judge’s report and recommendation indicated that the consp iracy

claims wo

uld proceed to trial. J.A. at 362. This report was adopted by the districtcourt without comment on the conspiracy claim. Scott

v. Churchill, No. 1:95 cv 571, slip op. at 2 (W.D. Mich. Oc t. 3, 2003), J .A. at 46 6-67. Sinc e Bair i s not entitl ed to qualified immunity on Scot

t’s Fi rst Amend

ment clai m, it stands to reason he is not entitled t o q ualified immunity on Scott’s conspira

cy claim. As to whet her the district court properl y considered Scott’s conspiracy claim to be reinstated, that issue is controlled by the mandate rule described

above: gi venthat the Scott II

court reversed the entire decision an d remanded to the district court for reconsideration, the district
cour t did not abuse its discretion in reconsidering Scott’sNo. 03-2427 Scott v. Ch urchill, e t al. 13

conspiracy

claim. If t

he initial reasons for dismissing the conspiracy

claim are not mitigated by the allowan ce of the First Amendment claim, Bair is free to ag ainmove for summary judgmen t on the me

rits of the conspira cy claim.

F i na ll y, Scott claims that Bair’s appeal is frivolous and vexatious, and he re quests da mages a nd costs be cause th

is appeal present s the same

issue as Scott II with no ch ang e in the law or facts. This is, on its face, a difficult contention to support. While Bell

had been decided before Scott II was argued, the Scott II

court cl early

wished to have the benefit of the district court ’s consid eration of qualif ied immunit

y in light of Bell before a definitive circuit court pronouncement
onthe issue. The district court having considered qualified im mu ni ty, Bair now appeals alleging leg al error in that consideration. While the legal issue may be the same in the broader sense — qu

alified i mmunity — the district court’s decisionclearly br

eaks new ground from Scott II

, and Ba ir is entitled to appeal from that

decision , especi ally

in light of the po li cy c on si de ra ti on s u nd er lyi ng qu al if ie d i mm un it y.
III. CONCL USION

For the foregoing reasons, we AFFIRM the district court’s judgmen t.