DESHAWN ANDERSON-SANTOS, Plaintiff-Appellee, v. KENT COUNTY, MICHIGAN, Defendant, DEREK LESHAN, in his individual and official capacity, Defendant-Appellant.
No. 23-1259
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
February 29, 2024
24a0041p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b).
Before: BATCHELDER, CLAY, and DAVIS, Circuit Judges.
COUNSEL
ON BRIEF: Randall J. Groendyk, VARNUM LLP, Grand Rapids, Michigan, for Appellant. Jonathan A. Abent, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake, Michigan, for Appellee.
OPINION
CLAY, Circuit Judge. Plaintiff DeShawn Anderson-Santos, a juvenile detainee at the Kent County Juvenile Detention Center, suffered a head injury after being pushed by Defendant Derek Leshan, a corrections officer. Anderson-Santos subsequently brought claims under
I. BACKGROUND
A. Factual Background
On January 14, 2020, DeShawn Anderson-Santos1 was detained at the Kent County Juvenile Detention Center following his guilty plea for a crime unrelated to the instant case. At around 2:30 p.m., the detention center was undergoing a shift change. Detainees are supposed to be in their rooms during shift changes. According to Anderson-Santos’ deposition, he was in his room when corrections officer Derek Leshan opened his door and pushed Anderson-Santos “hard,” causing him to fall. R. 62-4, Page ID #270. Anderson-Santos hit his head on the cement base of his bed, and his head bled from a laceration. He also experienced
Leshan tells a different story. At first, Leshan told the treating nurse that Anderson-Santos stumbled and fell in his room of his own accord. But Leshan later testified that the contact arose when Leshan was attempting to get Anderson-Santos to go to his room. Leshan claimed that the environment “was a very light mood, it was kind of joking.” R. 62-5, Page ID #291. According to him, the two were “chest to chest,” with Leshan‘s hand on Anderson-Santos’ shoulder. Id. Leshan stated that he was walking Anderson-Santos backwards when Leshan slipped on the “very slick” floor. Id. Then, Anderson-Santos’ head accidentally hit the corner of the brick that forms the bottom of the detainees’ beds. Leshan testified that he had no reason to have used physical force against Anderson-Santos.
A third version of these events comes from documents surrounding the investigation of the incident as well as depositions of relevant parties. A grievance form filled out by Anderson-Santos on the day of the incident reads:
I was on my way to my room and as I was walking into my room, the staff which is Derrick [Leshan] followed me and he tried to pass off a joke and pushed me hard and I fell and hit my head on the corner on the brick and this happened around 2:25 right around shift change and it also led up to me bleeding.
R. 62-1, Page ID #259 (spelling corrected). The program director responded on the grievance form:
Resident was seen by medical staff as a result following the incident to be treated due to having a laceration (injury) to his head . . . it was confirmed that the resident experienced an injury as a result of poor staff judgment. Staff was spoken to and reprimanded, suspended for 10 days and will not be allowed to work on the same unit as resident upon his return.
Id. Jeff Love, a supervisor at the detention center, testified in his deposition that “[Leshan] said that he pushed [Anderson-Santos] backwards and he slipped and fell.” R. 62-6, Page ID #310. And Holly Austin, who investigated the incident on behalf of the Michigan Division of Child Welfare Licensing, testified in her deposition that Anderson-Santos said Leshan “was trying to play a joke on him by telling him that Mr. Anderson‘s sweater was ripped at the back of the shoulder and that when Mr. Anderson looked for the rip, Mr. Leshan pushed him on his chest with one hand.” R. 62-9, Page ID #354–55.
B. Procedural History
On June 2, 2021, Anderson-Santos brought suit against Defendants Kent County and Leshan. Anderson-Santos alleged that Leshan used excessive force against him in violation of the
The magistrate judge issued a Report and Recommendation (“R&R“) which the district court later adopted in full. The R&R described the various contradictory versions of the incident. The magistrate judge concluded that a video of the events leading up to the incident2
In light of the disputed summary judgment facts, the magistrate judge recommended denying Defendants’ summary judgment motion as it applied to Leshan, finding that a genuine dispute of material fact existed as to the level of force Leshan used when pushing Anderson as well as his state of mind while doing so.3 In particular, the magistrate judge concluded that “a question of fact remains as to the amount of force that Leshan used. Defendants characterize the push as de minimis, while Anderson claims that he ‘was pushed hard.‘” Id. at Page ID #868 (quoting R. 62-4, Page ID #271). Further, the magistrate judge found that “there is sufficient circumstantial evidence from which a jury could infer that the incident was not a joke.” Id. at Page ID #870. The magistrate judge noted that because of these disputes of material fact—which bore directly on the question of whether Anderson-Santos’ constitutional rights were violated—Leshan was not entitled to qualified immunity.
The district court then adopted the R&R in full, over Leshan‘s objections. Because Leshan had not persuasively challenged the magistrate judge‘s conclusions that there were genuine issues of material fact, and because the magistrate judge‘s recommendation of a denial of qualified immunity was based on those genuine factual disputes, the district court held that there was “no error” in the R&R‘s qualified immunity determination. R. 87, Page ID #994. Leshan timely appealed.
II. DISCUSSION
Our threshold—and, as it turns out, only—question is whether this case falls within our limited jurisdiction. Leshan asks us to review the district court‘s denial of his motion for summary judgment, which included his claim of qualified immunity. Typically, denials of summary judgment are not appealable to this Court on an interlocutory basis because they are not final orders over which we have jurisdiction. See Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008) (citing
A defendant seeking to invoke a qualified immunity defense “may not appeal a district court‘s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–20 (1995). In
However, a defendant seeking to challenge a denial of qualified immunity, even a denial based on a genuine dispute of material fact, may invoke our jurisdiction by conceding the plaintiff‘s version of the facts. See Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998) (“[I]n order for []an interlocutory appeal based on qualified immunity to lie, the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiff‘s case.“); see also Moldowan v. City of Warren, 578 F.3d 351, 369–70 (6th Cir. 2009). A defendant who adopts the plaintiff‘s view can proceed before us by arguing that, even assessing the facts in the light most favorable to the plaintiff, there was no violation of the plaintiff‘s clearly-established rights. Berryman, 150 F.3d at 563.
Leshan attempts to overcome the factual dispute in this case by, as contemplated by Berryman and its progeny, conceding Anderson-Santos’ interpretation of the facts and challenging only the district court‘s legal conclusion that his actions, viewed in the light most favorable to Anderson-Santos, violated Anderson-Santos’ clearly-established constitutional rights. But, as we describe below, Leshan only purports to adopt Anderson-Santos’ version of the facts. Because a concession in name only is no concession at all, we hold that such concessions are insufficient to invoke our jurisdiction. Cf. Booher v. N. Ky. Univ. Bd. of Regents, 163 F.3d 395, 397 (6th Cir. 1998) (requiring an “unqualified concession” from defendants seeking to invoke this Court‘s jurisdiction on a qualified immunity appeal).
Leshan‘s professed concessions are as follows: (1) he states that he is “willing to accept the plaintiff‘s story,” and (2) he claims to “accept[] as true Anderson‘s version of the facts.” Def. Br., ECF No. 9, 12, 14. But Leshan recites a version of the facts that Anderson-Santos does not accept: “Leshan walked into [Anderson-Santos‘] room, jokingly told him to look down at his sweater, and then pushed him ‘hard’ with one hand to the chest.” Id. at 14. And Leshan‘s arguments rely on disputed facts. Leshan continually refers to his physical contact of Anderson-Santos as a “joking” push—exactly what Anderson-Santos denies. Compare Def Br., ECF No. 9, 39 (“Leshan‘s conduct of pushing Anderson a single time in a joking manner demonstrates, at most, mere negligence.“) with Pl. Br., ECF No. 13, 55 (“Mr. Anderson-Santos has and does allege that Defendant Leshan‘s actions were intentional and intended to cause harm, not merely ‘joking.‘“). Leshan also characterizes the push as “light” and compares his actions to other uses of “de minimis” force. Id. at 2, 12, 16. But Anderson-Santos alleges repeatedly that the push was “hard.” Pl. Br., ECF No. 13, 7, 10, 47.
These are the exact disputes of material fact—the amount of force Leshan used when he pushed Anderson-Santos and his state of mind in doing so—that the district court relied upon in denying the motion for summary judgment. Leshan, in continuing to argue that there was no clearly-established constitutional violation based on his
We have previously denied jurisdiction where, as in this case, the defendant purports to concede the plaintiff‘s view of the facts but in effect still litigates the factual dispute. Just like the defendants in Booher, Leshan states that he is “willing to concede any disputed facts for the purposes of appeal, but [he] preface[s] that concession with a narrative challenging several of the factual determinations underlying the district court‘s denial of qualified immunity.” 163 F.3d at 396. Just like the defendant in Barry v. O‘Grady, 895 F.3d 440, 444 (6th Cir. 2018), Leshan “applie[s] his own factual conclusions and inferences” to the plaintiff‘s claims. And just like the defendants in Berryman, Leshan “attempts to persuade us to believe [his] version of the facts.” 150 F.3d at 565. In all three cases, we held that we had no jurisdiction. Because we cannot depart from our well-established precedent, we must similarly decline to find jurisdiction in this case. Where the defendant fails to truly concede the plaintiff‘s facts as required by our case law, we cannot exercise jurisdiction over the qualified immunity interlocutory appeal.
CONCLUSION
For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.