LYNDAL KIMBLE and MELANISE KIMBLE, Plaintiffs-Appellees, v. GREG HOSO; FRANK TEMPESTA; MICHAEL STABILE; JOHN MANDOPOULOS; and THE CITY OF WARREN, Defendants-Appellants.
No. 04-3837
United States Court of Appeals for the Sixth Circuit
February 28, 2006
441 F.3d 405
Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 06a0076p.06. Argued and Submitted: February 2, 2006. Decided and Filed: February 28, 2006.
ARGUED: Hilary S. Taylor, WESTON HURD, Cleveland, Ohio, for Appellants. ON BRIEF: Hilary S. Taylor, WESTON HURD, Cleveland, Ohio, for Appellants. Richard A. Olivito, Boardman, Ohio, for Appellees.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge. Lyndal and Melanise Kimble filed suit against the defendants under
I.
According to the Kimbles‘s complaint, on the evening of June 28, 2003, Warren police officers Greg Hoso and Frank Tempesta observed Lyndal Kimble driving on Colonial Road toward Niles Road. The officers followed Kimble in their vehicle because they allege that he failed to use a turn signal when making a right turn onto Niles Road and again when turning onto Kennilworth Road. Kimble parked his vehicle in the front yard of his residence on Kennilworth. Officer Hoso
Another officer, Officer Stabile, was then called to the scene. The three officers then took Kimble and slammed him against the policе cruiser and onto the ground repeatedly while they punched, kicked and kneed Kimble in the body and face. The police officers also maced Kimble at least seven separate times, including spraying Kimble in the mouth, nose and eyes after Kimble was already on the ground. While Kimble was on the ground, one of the officers jammed his baton into Kimble‘s back while other officers slapped and kneed him repeatedly until the officers were physically exhausted. The beating was witnessed by several individuals and videotaped by a bystander. The videotaped encounter received national media attention, in part because the officers were Caucasian and Kimble is African-American. The officers eventually took Kimble to the police station and he was later transported to a local hospital where he was provided with limited medical care.
Contrary to the Kimbles‘s complaint, Officers Hoso and Tempesta allege that when they approached Kimble‘s vehicle they observed him put a large white object in a plastic baggie into his mouth. Office Hoso alleges he ordered Kimble to spit out the baggie but he refused. Kimble then attempted to get out of the passenger side of the car, which Hoso attempted to prevent him from doing. The officers assert that Kimble resisted their effort to get him out of the driver‘s side of the vehicle and continued to fight them even after they had gotten him out of the vehicle. As a result the officers requested backup and Officer Stabile arrived on the scene. During the altеrcation, the officers claim they observed Kimble spit the baggie out of his mouth and throw it on the ground. Kimble then tried to grab Hoso around the neck and Hoso struck Kimble in the shoulder and fist. Kimble continued to struggle with the officers and Officer Hoso retrieved the baggie from the ground and placed it on the hood of the pоlice cruiser. After doing so Hoso attempted to break Kimble‘s resistance by striking Kimble twice in the shoulder with his knee. Officers Tempesta and Hoso then sprayed Kimble with mace in an attempt to subdue him. Officer Stabile also struck Kimble with his baton in the shoulder. Finally after several minutes the officers were able to handcuff Kimble.
On November 20, 2003, Lyndal Kimble and his wife Melanise Kimble filed suit under
Plaintiffs‘s counsel failed to file a brief in opposition to summary judgment by the March 9th deadline. As a result, the district court issued an order to show cause why the unopposed motion for summary judgment should not be granted and held a hearing on the motion on April 15th. At the hearing, the Kimbles‘s аttorney Richard Olivito appeared scattered and unprepared. Olivito alleged that he had failed to file a brief in opposition to summary judgment based on problems in his personal life over the proceeding several months. Olivito asserted that he had spent a day in jail, was involved in a custody battle and had a major chronic illness that had recently prevented him from devoting himself to his caseload.
The district judge, concerned that the Kimbles‘s arguably meritorious claim might be unfairly dismissed based on their lawyer‘s malfeasance, ordered Olivito to obtain the assistance of co-counsel to aid him in preparing the Kimbles‘s case by April 30th. The district court‘s order stated that if Olivito failed to obtain co-counsel then he would be removed from the case. On May 3, Clair Carlin filed a notice of appearance indicating that he had been retained to represent the Kimbles as Olivito‘s co-counsel. The district сourt recognized Carlin‘s appearance as co-counsel and ordered that the Kimbles‘s counsels respond to the defendants‘s motion for summary judgment by June 3. On June 8, Carlin filed a motion for an extension to respond to the defendants‘s summary judgment motion until June 30, on the grounds that he had not yet had an opportunity to review, organize, and evaluate the Kimbles‘s case with Olivito. The district court granted Carlin‘s motion but noted that this was the last extension that plaintiffs‘s counsels would receive. On June 8th, defense counsel submitted a notice of interlocutory appeal claiming that the district court erred in failing to rule on the defendаnts‘s summary judgment motion.
II.
Before we address the merits of the defendants‘s appeal, we must first determine whether we have jurisdiction over the defendants‘s claims. As a general rule, the federal appellate courts have no jurisdiction under
There is no doubt that a decision on qualified immunity involves a claim of right that is separate from, and collateral to, rights asserted in a section 1983 action so long as the appeal does not challenge the facts of the case but rather only raises a question of law. Mitchell, 472 U.S. at 527. The question we must answer therefore is whether the district court‘s delay in ruling on the defendants‘s motion for summary judgment qualifies as a conclusive determination of the issue of qualified immunity or some other collaterаl order in this case. We conclude that it does not and thus we lack jurisdiction over the defendants‘s appeal.
The district court in this case did not make any decision on the merits or otherwise as to the defendants‘s motion for summary judgment. Rather, the district court merely delayed ruling on the
The defendants point to this Court‘s decision in Skousen v. Brighton High School, 305 F.3d 520 (6th Cir. 2002), as grounds for concluding that this Court has jurisdiction over the defendants‘s interlocutory appeal. The defendants‘s brief suggests that Skousen is a nearly identical case to the one now before this Court and thus should control our legal analysis. We read Skousen as being sufficiently distinct so as not to control here. In Skousen, the defendant filed a motion for summary judgment on the grounds of qualified immunity. The district court denied the defendant‘s motion without prejudice on the grounds that it was untimely because discovery was not yet completed. We ruled that the district court‘s failure to rule on the merits of the defendant‘s motion was legal error. Our basis for holding was the Supreme Court‘s decision in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), that stated that “until [the] threshold immunity question is resоlved, discovery should not be allowed.” Thus, in Skousen we reasoned that the district court was required to address the merits of the defendant‘s summary judgment motion “prior to permitting further discovery.” Skousen, 305 F.3d at 527. Not permitting the defendant to appeal the district court‘s denial of their motion on timeliness grounds would defeat the purpose of the qualified immunity, the Skousen court reasoned. Qualified immunity is immunity from suit, not merely a defense against liability. Thus, the purpose of qualified immunity would be defeated if a defendant was required to face further stages of litigation, such as discovery, before the qualified immunity question was addressed. Thus, the Skousen court decided that where the district court‘s denial of a summary judgment motion defeats the essential purpose of qualified immunity, the court of appeals has jurisdiction to review an interlocutory appeal.
The procedural history of this case differs from that in Skousen in two critical ways. First, while in Skousen, there was an order denying the defendant‘s summary judgment motion (albeit without prejudice and not on the merits), here there has been no ruling whatsoеver on the defendants‘s motion on the merits or otherwise. Thus, unlike in Skousen, there is no order which even arguably allows this Court to conclude that, as required by the collateral order doctrine, the issue of qualified immunity has been conclusively determined. Moreover, this case differs from Skousen in that the district court did not delay ruling on the dеfendants‘s motion for the legally erroneous reason of permitting further discovery. On the contrary, the district court‘s earlier order made it abundantly clear that the district court was cognizant of Supreme Court‘s ruling in Harlow, as the district court stayed further discovery until the issue of qualified immunity was addressed. Instead, the district court merely delayed ruling on the defendants‘s motion based on concerns that the Kimbles‘s failure to oppose the motion was based on the negligence of counsel rather than their lack of a colorable claim. This type of delay, which does not require the defendants to face any additional stagеs of litigation, does not undercut the essential purpose of qualified immunity. Based on these critical differences, we conclude that Skousen does not support the defendants‘s argument that we have jurisdiction over the defendants‘s interlocutory appeal.
Moreover, none of the other cases thе defendants cite lend sufficient credence to their jurisdiction argument. The other Sixth Circuit cases referenced by the defendants are nearly identical to Skousen and thus go no farther in advancing the defendants‘s claims. See Wallin v. Norman, 317 F.3d 558 (6th Cir. 2003) (review permitted where the district court denied without prejudice the defendant‘s motion fоr summary judgment on qualified immunity grounds to permit discovery to occur); Summers v. Leis, 368 F.3d 881 (6th Cir. 2004) (same). In addition, all of the
Given the lack of precedent supporting the defendants‘s jurisdiction claim, we conclude that the collateral order doctrine does not encompass the defendants‘s interlocutory appeal. With good reason, district courts ordinarily enjoy broad discretion in matters of pretrial management, scheduling, and docket control. See, e.g., Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999); In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). Here, the district court exercised that discretion to grant the Kimbles an additional three and half months to reply to the defendants‘s motion for summary judgment. While the defendants were clearly unhappy with the extensions the district court granted, the time delay does not appear egregiously long given the circumstances of the сase. Thus, we decline to conclude that the district court‘s delay in ruling on the defendants‘s summary judgment motion amounted to a denial of that motion. As such, we conclude that there was no appealable order in this case to which the collateral order doctrine could apply. We therefore lack jurisdiction over the defendants‘s interlocutory appeal.
III.
For the reasons discussed above, we dismiss the defendants‘s appeal for lack of jurisdiction.