Terry SUMMERS, Plaintiff-Appellee, v. Simon LEIS, Sheriff, Defendant-Appellant.
No. 03-3347
United States Court of Appeals, Sixth Circuit
Decided and Filed: May 21, 2004
Rehearing and Suggestion for Rehearing En Banc Denied July 9, 2004.
368 F.3d 881
Before: BATCHELDER and COLE, Circuit Judges; HOOD, District Judge.
David Todd Stevenson (briefed), Joseph M. Hutson (briefed), Hamilton County Prosecuting Office, Cincinnati, OH, for Defendant-Appellant.
HOOD, District Judge.
Terry Summers (“Summers”) brought this
Summers, a resident of Cincinnati, Ohio, actively protests the police misconduct, judicial misconduct, and racial injustice he perceives to exist in Hamilton County, Ohio. On September 18, 2002, and September 23, 2002, he was engaging in such protests on the public sidewalk in front of the Hamilton County Courthouse. During both protests, Summers dragged the Ameriсan Flag on the ground and, on both occasions, he was arrested by Hamilton County deputy sheriffs. At the time of his arrests, Summers was charged with disorderly conduct in violation of
On September 24, 2002, while the charges against Summers were pending in the Hamilton County Municipal Court, Summers filed a
Leis filed a motion for summary judgement on October 15, 2002, on the grounds of abstention, qualified immunity, state based immunities, and failure to state a claim. In response, on October 29, 2002, Plaintiff-Appellee filed a motion to hold Sheriff Leis’s motion for summary judgment in abeyance until completion of discovery. On February 18, 2003, after the issue was fully briefed, the district court denied Summers’s motion as moot, and denied “without prejudice to resubmission” Leis’s motion for summary judgment, declining to address the merits of the motion pending the completion of discovery.4 On
II. STANDARD OF REVIEW
We review a grant or denial of summary judgment de novo, using the same
Additionally, this Court conducts de novo review of the district court’s denial of a defendant’s motion for summary judgment on the basis of qualified immunity because, as we have noted, “the issue whether qualified immunity is applicable to an official’s actions is a question of law.” Chappel v. Montgomery County Fire Protection Dist. No. 1, 131 F.3d 564, 573 (6th Cir. 1997) (citing Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996)). “Because the issue of qualified immunity is a legal question, no deference is due the district court’s conclusion.” O’Brien v. City of Grand Rapids, 23 F.3d 990, 998 (6th Cir. 1994).
III. DISCUSSION
A. Qualified Immunity
In this case, Leis filed a motion for summary judgment based, in part, on the defense of qualified immunity. The district court’s February 18, 2002, order declined to assess the merits of Leis’s motion for summary judgment, denying the motion “without prejudice to resubmission.” This ruling was effectively a denial of qualified immunity. The district court’s decisiоn was based on an apparent belief that any decision regarding qualified immunity was premature and should await the close of discovery.
Summers argues that because the district court did not rule on the merits of the asserted qualified immunity defense, this court presently lacks jurisdiction to review the district court’s refusal to grant relief. He also argues that because the motion can be renewed at the close of discovery, Leis retains the possibility that the qualified immunity defense will shield him from trial. Leis, on the other hand, argues that the district court’s denial of the motion as premature operates as a final decision on qualified immunity because it deprives him of a key benefit of the doctrine’s protection—immunity from suit, not just from liability. Further, Leis contends that in order to adequately oppose the motion for summary judgment based on a need for further discovery, Summers should have filed an explanatory
Jurisdiction in this matter arises under
An interlocutory decision appealable as a final order must satisfy two criteria: (1) “[I]t must conclusively determine the disputed question,” and (2) that question must involve a claim “of right separable from, and collateral to, rights asserted in the action.” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985) (internal citations omitted). 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 the action. Id. The key issue thus becomes whether the district court’s refusal to address the merits of the Leis’s motion conclusively determined the issue in this case.
The purpose of a qualified immunity defense is not only protection from civil damages but protection from the rigors of litigation itself, including the potential disruptiveness of discovery. See Pierson v. Ray, 386 U.S. 547 (1967); Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In fact, the Court in Anderson v. Creighton emphasized that “[o]ne of the purposes of the Harlow qualified immunity standard is to protect public officials from the ‘broad-ranging discovery’ that can be ‘particularly disruptive of effective government.’” Anderson v. Creighton, 483 U.S. 635, 646 (1987) (quoting Harlow, 457 U.S. at 817). So, here, even though the defendant-appellant is free to renew his motion later, “[he] would in the meantime be forced to go through a large part of the litigation process that the qualified immunity doctrine seeks to avoid.” Wallin v. Norman, 317 F.3d 558, 563 (6th Cir. 2003).
This Court has held on multiple prior occasions that, when faced with a motion based on qualified immunity, a district court can not avoid ruling on the issue. See e.g., Skousen v. Brighton High School, 305 F.3d 520 (6th Cir. 2002). In the case of Skousen v. Brighton High School we concluded that a district court committed legal error in dismissing a motion for summary judgement based on qualified immunity solely because discovery was not complete. See Skousen, 305 F.3d 520. We held that, because the defense of qualified immunity is a threshold question, if the defense is properly raised prior to discovery, the district court has a duty to address it. Id.
Rather than dismiss the [summary judgment] motion because discovery was not complete, the district court was required to determine—prior to permitting further discovery—whether [Plaintiff’s] complaint alleged the violation of a constitutional right at all, and if so, whether that right was clearly established at the time of the alleged violation.
Id. at 527. Only after the court inquires into whether any facts material to Plaintiffs’ claims are genuinely at issue, and only upon a finding that material facts are in fact in dispute is a court at liberty to hold a motion for summary judgment in abeyance pending additional discovery. Id. Because the order denying summary
As mentioned above, the district court’s denial of Leis’s summary judgment motion was bаsed on an apparent belief that any decision regarding qualified immunity was premature and should await the close of discovery. When a motion for summary judgment is filed, the party opposing the motion may, by affidavit, explain why he is unable to present facts essential to justify the party’s opposition to the motion.
Summers аrgues that he did in fact submit the affidavit of his counsel which ostensibly states why further discovery is needed. That affidavit, however, merely recites the same conclusory allegation[s] contained in the complaint: ‘Counsel believes evidence will demonstrate the Plaintiff was arrested for no other reason than dragging the American Flag.’ (Lawson Aff. ¶ 3). This does not meet the requirements of
Bare allegations or vague assertions of the need for discovery are not enough. United States v. Cantrell, 92 F.Supp.2d 704, 717 (S.D.Ohio 2000) (citing Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 409 (6th Cir.1998)). In order to fulfill the requirements of
In the absence of a sufficient affidavit, there is no justification for the district court’s determination that a motion for summary judgment would be premature until the close of discovery. Therefore, the district court erred in not ruling on Leis’s motion for summary judgment.
This Court finds that the district court’s refusal to address the merits of the defendant’s motion asserting qualified immunity constitutes a conclusive determination for the purposes of allowing an interlocutory appeal.
2. Merits
Having determined that the district court’s refusal to address the merits of the defendant’s motion asserting qualified immunity constitutes a conclusive determination for the purposes of allowing an interlocutory appeal, we can consider the order as final. Thus, we now turn to the merits of whether Leis is entitled to qualified immunity.
In an action brought pursuant to
The first question for the Court is whether Leis, acting under the color of state law, committed a constitutional violation. A claimed constitutional violation must be based upon active unconstitutional behavior. Greene v. Barber, 310 F.3d 889, 899 (6th Cir.2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Id. Summers has failed to demonstrate that Leis engaged in any active unconstitutional behavior. In fact, Summers’s complaint attributes no specific acts to Leis at all. Summers’s claim against the Sheriff is based solely on the actions of his unnamed deputies. Furthermore, Summers’s complaint alleges no specific, unconstitutional policy, custom or practice on the part of Sheriff Leis, nor does it allege that Leis acted in any capacity other than employer of the deputies that arrested Summers.
In failing to assert, much less identify, any constitutional wrong committed by Leis, Summers has failed to set forth anything establishing a claim under
B. Municipal Liability and Younger abstention
The final two issues, whether the district court erred in failing to dismiss the claims against Hamilton County, Ohio, and whether the district court erred in failing to dismiss the action pursuant to Younger v. Harris, will be treated together for it is in these contexts that another jurisdictional issue, an issue not broached by either party, arises.
As noted above, the dismissal of Leis’s motion for summary judgment is appealable as a final judgment to the extent that it involves issues of qualified immunity. The reasoning behind such a finding, however, does not carry over to the questions of whether the district court erred in failing to dismiss the claims against Hamilton County or in failing to dismiss the entire action pursuant to Younger v. Harris. We conclude thаt this Court does not have jurisdiction to address either of these issues.
1. Municipal Liability
In Swint v. Chambers County Commission, a unanimous Supreme Court held that the denial of summary judgment based on municipal liability is not immediately appealable. Swint v. Chambers County Commission, 514 U.S. 35, 43 (1995). The Swint Court supported their holding by pointing out that the rationale supporting immediate review of some qualified immunity decisions does not extend to a municipality’s defenses to § 1983 claims. As discussed in more detail above, in qualified immunity cases, “the entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute
This Circuit has also determined that the denial of summary judgment based on municipal liability is not immediately appealable. See Crockett v. Cumberland College, 316 F.3d 571, 578 (6th Cir.2003). In Crockett we stated that “... even if the City [appellant] had raised the issue of municipal liаbility at the district court level and the district court had rejected that argument, this Court would not have jurisdiction over such an appeal under the collateral order doctrine.” Crockett, 316 F.3d at 578. We explained that, in such cases, the third prong of the collateral order doctrine can not be satisfied because an appellate court can effectively review the question of municipal liability after the district court renders a final judgment. Id.
As this Court is without jurisdiction to consider the merits of Hamilton County’s municipal liability defense, we decline to entertain this portion of the appeal.
2. Younger Abstention
Abstention is treated in much the same manner as the municipal liability issue discussed above. The outcome is identical; this Court does not have jurisdiction to review the issue of whether the district court erred in failing to dismiss the action when criminal charges involving the same conduct and parties were pending in state court. The district court’s failure to dismiss the entire action pursuant to Younger does not qualify as a final decision under
We therefore focus on whether exercise of our pendent appellate jurisdiction is appropriate. Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but, may be reviewed on interlocutory appeal if those issues are “inextricably intertwined” with matters over which the appellate court properly and independently has jurisdiction. Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998). This circuit has interpreted “inextricably intertwined” to mean that the resolution of the appealable issue “necessarily and unavoidably” decides the nonappealable issue. Vakilian v. Shaw, 335 F.3d 509, 521 (6th Cir. 2003) (citing Brennan v. Township of Northville, 78 F.3d 1152, 1157 (6th Cir. 1996)).
A district court’s determinations of whether it must abstain under Younger and whether to grant qualified immunity require the application of separate and
Pendent appellate jurisdiction may also be appropriate if review of the issue of which the Court does not properly have jurisdiction is “necessary to ensure meaningful review” of the issue of which the Court does. Archie v. Lanier, 95 F.3d 438, 443 (6th Cir. 1996) (citing Swint, 514 U.S. at 51). That is not the case here. In this instance, resolution of the Younger abstention issue is not critical because, even if the district court is required to abstain under Younger and dismiss the suit, such a result has no effect on whether Leis is entitled qualified immunity. Nothing pertaining to the qualified immunity issue could potentially interfere with ongoing state proceedings, thus review of the court’s Younger abstention decision is not “necessary to ensure meaningful review of” the denial of qualified immunity.
The district court’s failure to dismiss the action on the basis of Younger abstention, therefore, is not “inextricably intertwined” with or “necessary to ensure meaningful review of” the qualified immunity appeal of Leis. Consequently, this Court lacks pendent appellate jurisdiction over that argument. As we are without jurisdiction, we decline to review the district court’s failure to dismiss pursuant to Younger v. Harris.
Since the principles of Younger do not require us to abstain from considering Leis’s qualified immunity, we do not believe it would be proper to use the asserted qualified immunity defense of one defendant as a gateway to review the otherwise currently unappealable Younger assertions of all the defendants. We are confident that the district court is capable of addressing the issue in the first instance on remand.
IV. CONCLUSION
For all the reasons set forth above, we REVERSE thе district court’s denial of summary judgment in part finding that Leis is entitled to qualified immunity. Additionally, we DISMISS the remainder of the appeal dealing with issues of municipal liability and abstention for lack of appellate jurisdiction. Finally, we REMAND this action to the district court for further proceedings consistent with this opinion.
ALICE M. BATCHELDER, Circuit Judge, concurring.
I concur in judgment only. Although I generally agree with the majority’s reasoning, I believe that the federal courts should have abstained from hearing the present matter and therefore should not have reached the merits of Summers’ claims.
Summers askеd this Court not only to enjoin future arrests, but also to declare that the defendants’ actions are unconstitutional. Although Summers claimed that he did not seek to enjoin the state prosecutions, he in essence sought a predetermination from the federal courts that his pending motion in the state proceeding ought to be granted. Such a holding necessarily impacts the state prosecution.
The Supreme Court has held that absent extraordinary circumstances, federal equity jurisdiction may not be used to enjoin pending state prosecutions. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Younger abstention doctrine is based on the principle that the states have a special interest in enforcing their own laws in their own courts. Id.
The majority has reasoned that the district court’s failure to dismiss the action pursuant to Younger does not qualify as a final decision and that deciding the issue of abstention is unnecessary in order to review the issue of qualified immunity. Even in determining whether Sheriff Leis is entitled to qualified immunity, however, this Court must necessarily pass on Leis’ conduct—or lack thereof—in the context of the two arrests. This would determine issues which, at the time the federal action was initiated, were present in the criminal proceedings before the Hamilton County Municipal Court. We specificаlly cautioned against such action in Zalman v. Armstrong. “[T]he principles underlying Younger require that the initial frame of reference for abstention purposes be determined at the time that the federal complaint is filed, or at the very latest, at the time a hearing is held on the merits.... Any other rule would [] permit a district court to directly interfere in an ongoing state proceeding and yet preclude a review of the propriety of that interference by an appellate court.” Zalman, 802 F.2d at 203 (emphasis added).
The Supreme Court has specifically held that when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. Heck v. Humphrey, 512 U.S. 477, 487 (1994). If it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. “For example, if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention [is] an appropriate response to the parallel state-сourt proceedings.” Id. at 487 n. 8.
We have directly addressed this issue in the exact context presented here, where a § 1983 action, if successful, would imply the invalidity of a future conviction on a pending criminal charge. In Shamaeizadeh v. Cunigan, 182 F.3d 391 (1999), we found that “the concerns of Heck apply pre-conviction as well as post-conviction.” Id. at 398. Under the plain holding of Shamaeizadeh, a plaintiff cannot “bring an action seeking damages related to the criminal proceeding brought against him until a disposition in that proceeding ha[s] been reached.” Id. at 398-99. Indeed, the statute of limitations does not even begin to run for criminal defendants seeking to file § 1983 claims until
Appellate review of Younger abstention is therefore properly bеfore this Court, as the question of abstention cannot be determined at any other time without permitting the type of interference against which Younger and its progeny specifically sought to protect. It would make little sense, I think, to decline to address the issue of abstention at this point, hold that qualified immunity applies to Sheriff Leis’ actions, and then, if we see this case again at a later stage in the litigation, hold at that time that the district court should have dismissed the entire action as an initial matter.
Summers has argued that there is “no identified imрortant State interest in the criminal proceeding.” This belies both the law and common sense. “A State’s decision to classify conduct as criminal provides some indication of the importance it has ascribed to prompt and unencumbered enforcement of its laws.” Younger, 401 U.S. at 55 n. 2 (Stewart, J., concurring). Summers can and should present his federal claims in the state court proceedings. Where a prosecution is threatened by state officers for alleged violations of a state law, the state courts are the final arbiters оf the law’s meaning and application, subject only to review by the United States Supreme Court on federal grounds properly asserted. Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943).
Nothing prevented Summers from presenting his federal claims in the pending state court proceedings. If he had done so, and the trial court had denied or otherwise failed to consider Summers’ constitutional claims, he could exercise his right to an appeal under Ohio law. “[P]laintiffs will have an adequate opportunity to raise th[e] issue on appeal, which is sufficient for Younger purposes.” Nernberg v. City of Pittsburgh, 50 F.Supp.2d 437, 440 (1999). Summers also has access to remedies under
Because abstention is appropriate, this Court should not reach any of the claims in the complaint.
JOSEPH M. HOOD
UNITED STATES DISTRICT JUDGE