Robert KENNEDY, Plaintiff-Appellant, v. CITY OF CINCINNATI; J. Zucker; David Hudepohl, Defendants-Appellees.
No. 11-3212.
United States Court of Appeals, Sixth Circuit.
May 23, 2012.
BEFORE: DAUGHTREY and CLAY, Circuit Judges; and CLELAND, District Judge.*
CLELAND, District Judge.
Plaintiff-Appellant Robert Kennedy lost at trial on a procedural-due-process claim under
On June 21, 2007, Zucker, a Cincinnati Police Officer, expelled Kennedy from a swimming pool owned and operated by the City of Cincinnati, based upon accusations from pool staff that Kennedy had been lurking in the pool area to watch children swim. Kennedy challenged the revocation of his pool pass, and the resulting ban from public property, in the United States District Court for the Southern District of Ohio. He alleged, in part, that Zucker had deprived him of a constitutionally protected liberty interest in access to public spaces without affording him notice and the opportunity to be heard. The district court denied both Kennedy‘s and Zucker‘s motions for summary judgment, Kennedy v. City of Cincinnati, No. 07-cv-512, 2009 WL 87423 (S.D.Ohio Jan. 12, 2009), and this Court affirmed the denial of Zucker‘s motion, which asserted qualified immunity, Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir.2010). After a trial on the merits was held and the jury returned a verdict for Zucker, Kennedy filed a notice of appeal addressing only the district court‘s denial of his summary judgment motion.
This Court‘s jurisdiction extends only to appeals from “final decisions” of a district court.
This matter is a clear example of an impermissible appeal from an interlocutory denial of summary judgment. Nevertheless, Kennedy attempts to avoid dismissal by fitting his case into a possible exception acknowledged in Ortiz: that an order denying summary judgment on “a purely legal issue” capable of resolution “with reference only to undisputed facts” may be appealed. Id. at 892 (internal quotation marks omitted); see Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 545 (6th Cir.2012) (”Ortiz leaves open the possibility that cases ‘involving only disputes about the substance and clarity of pre-existing law’ may still be considered....” (alterations omitted) (quoting Ortiz, 131 S.Ct. at 892)); Fencorp, Co. v. Ohio Ky. Oil Corp., 675 F.3d 933, 939-40 (6th Cir.2012) (same); Copar Pumice Co. v. Morris, 639 F.3d 1025, 1031 (10th Cir.2011); Owatonna Clinic-Mayo Health Sys. v. Med. Protective Co. of Fort Wayne, Ind., 639 F.3d 806, 809-10 (8th Cir.2011).
Just as was the case in Ortiz, however, Kennedy‘s appeal is not of a purely legal character. In denying Kennedy‘s motion, the district court concluded that Kennedy had shown a constitutionally protected interest in access to the public pool. At the same time, it explicitly noted that summary judgment was inappropriate due to the “disputed questions of fact” that remained “as to what procedural process was afforded or available—pre-revocation and post-revocation.” Kennedy, 2009 WL 87423, at *2; cf. Kennedy, 595 F.3d at 338 n. 7 (“As the district court noted, ‘entry of judgment regarding qualified immunity must await the jury‘s resolution of the disputed facts as to the process afforded.’ Moreover, the scope and duration of Kennedy‘s ban from CRC grounds, as well as whether or not the facts support a revocation for good cause under the pool‘s rules, remain in dispute.“).
Kennedy counters that, notwithstanding these fact disputes, the evidence proffered to the district court on summary judgment unequivocally demonstrates that he was not afforded notice or a meaningful opportunity to be heard—even when that evidence is viewed in the light most favorable to Zucker. But Ortiz precludes precisely this type of inquiry into whether the evidence presented at the summary judgment stage merits judgment as a matter of law.
We DISMISS this appeal for lack of appellate jurisdiction.