Frantz, et al v. Village of Bradford

Decision Date22 September 2000
Docket NumberNo. 99-4186,99-4186
Citation245 F.3d 869
Parties(6th Cir. 2001) Jack Frantz, et al., Plaintiffs-Appellees, v. Village of Bradford, et al., Defendants, Shane Duffey, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 97-00346, Walter H. Rice, Chief District Judge.

Marc D. Mezibov, Howard M. Schwartz, Christian A. Jenkins, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellees.

Chandra S. Baldwin, Christian A. Jenkins, Sirkin, Pinales, Mezibov & Scwhartz, Cincinnati, OH, for Lowell Kissinger and Lowell Kissinger, Jr.

W. McGregor Dixon, Jr., SHIPMAN, DIXON & LIVINGSTON, Troy, Ohio, for Appellant.

Before: MERRITT, KENNEDY, and GILMAN, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which MERRITT, J., joined. GILMAN, J. (pp. 877-81), delivered a separate dissenting opinion.

KENNEDY, Circuit Judge.

OPINION

This case arises from an altercation between Jack Frantz (Frantz) and two Bradford, Ohio police officers on August 3, 1996, which led to the arrest and trial of Frantz for felony assault, disorderly conduct, and resisting arrest. After a jury acquitted Frantz of these criminal charges, he commenced an action pursuant to 42 U.S.C. § 1983 against the Village of Bradford, the Bradford Police Department, and several named defendants, including Officer Shane Duffey. Frantz's complaint includes allegations of unreasonable seizure, arrest without probable cause, the use of excessive force, malicious prosecution, and false imprisonment.

Officer Duffey moved for summary judgment on the basis of qualified immunity. The district court denied his motion. Duffey then filed this limited interlocutory appeal, arguing that he is entitled to qualified immunity from Frantz' claim of malicious prosecution. For the reasons set forth below, we deny Duffey's request for qualified immunity. We dismiss this appeal because we conclude that plaintiff does not have a cognizable constitutional claim for malicious prosecution, distinct from his Fourth Amendment claims still pending in the district court.

I.

Jack and Peggy Frantz were married on August 3, 1996. They held a wedding reception at the Community Club in the Village of Bradford, Ohio. As the reception was ending near midnight, Jack Frantz realized that he did not have a key to lock the Club. He walked across the street to a gas station with one of his male guests and his mother, Janet Frantz, in order to call the bartender to obtain the key. When they were unable to reach the bartender, the group left the gas station to return to the Club. As they crossed the street, a Bradford police cruiser turned into the Club parking lot.

According to Frantz, Officer Duffey exited the cruiser, turned to the group, and said, "I want to talk to you." Not knowing whom Duffey was addressing, Jack Frantz replied, "What?" Janet Frantz told her son to wait in her car while she approached Duffey to ascertain what he wanted. Duffey refused to speak with her, however, and turned to Jack Frantz, repeating, "I want to talk to you, come over here." Frantz started walking toward Duffey, making a hand gesture indicating "What did I do?" while verbalizing the same question. As Frantz approached, Duffey backed away and reported into his police radio that he was being "charged."

The situation quickly escalated. Covington Officer Duane Williams arrived at the scene. According to Frantz, the officers used excessive force to arrest him, including when Officer Duffey struck him in the head with a flashlight as he attempted to get up from the ground.

Duffey tells a substantially different story. Duffey claims that Frantz was intoxicated and that he threatened Duffey and had to be restrained by Frantz's male guest. Duffey further claims that Frantz forcefully resisted arrest and that it was necessary for Duffey to use the flashlight to protect himself from Frantz's assault.

Frantz was tried for felony assault, disorderly conduct, and resisting arrest as a result of his encounter with Officers Duffey and Williams. A jury acquitted Frantz of all charges. After the criminal trial concluded, Frantz initiated a suit in federal district court against the Village of Bradford, the Bradford Police Department, and Officers Duffey and Williams. Frantz alleged violations of both federal and state law, including the deprivation of his constitutional rights under color of state law pursuant to 42 U.S.C. § 1983. The individual defendants were sued in both their personal and official capacities.

Several defendants filed motions for summary judgment, including Duffey. The district court determined that Frantz had raised genuine issues of material fact regarding his constitutional right to be free from unlawful arrest, excessive force, and malicious prosecution. Construing the facts in the light most favorable to Frantz, the district court held that Duffey was not entitled to summary judgment on the basis of qualified immunity. Duffey then filed a timely interlocutory appeal, claiming qualified immunity only from plaintiff's malicious prosecution claim.

II.
A.

We must first evaluate whether this court has jurisdiction to review appellant's interlocutory appeal. The denial of a motion for summary judgment based on the defense of qualified immunity constitutes an immediately appealable interlocutory order within the meaning of 28 U.S.C. § 1291 "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Supreme Court further delineated the scope of appellate jurisdiction over interlocutory district court decisions denying qualified immunity in Johnson v. Jones, 515 U.S. 304 (1995). The Court explained that "a defendant, entitled 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." Id. at 319-20. In short, only claims presenting "abstract issues of law" qualify as permissible interlocutory appeals. Id.at 317.

In Behrens v. Pelletier, 516 U.S. 299 (1996), the Supreme Court reaffirmed the rule that only legal issues are reviewable on interlocutory appeal. The Court explained that "Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly 'separable' from the plaintiff's claim," and does not constitute a final order appropriate for interlocutory review. Id. at 313.

This circuit has applied the principles of Mitchell, Johnson, and Behrens in numerous cases to determine the scope of our appellate jurisdiction over interlocutory appeals from denials of summary judgment based on the defense of qualified immunity. See, e.g., Hoard v. Sizemore, 198 F.3d 205, 209 (6th Cir. 1999) (denying jurisdiction over an interlocutory appeal where the district court found that a genuine issue of material fact existed); Berryman v. Rieger, 150 F.3d 561 (6th Cir. 1998) (determining that appellate jurisdiction was lacking over an interlocutory appeal because the defendant failed to concede an interpretation of the facts in the light most favorable to the plaintiffs); Chappel v. Montgomery County Fire Protection Dist., 131 F.3d 564, 572 (6th Cir. 1997) (exercising jurisdiction in an interlocutory appeal concerning the purely legal issue of whether First Amendment rights were implicated); Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996) (finding jurisdiction in an interlocutory appeal where the only dispute was over the question of whether a clearly established right was violated).

Although appellant in the present case does raise factual issues on this appeal, we conclude that questions of law exist which give this court jurisdiction. Duffey claims that the district court erred by (1) failing to conclude that Duffey had probable cause to arrest and prosecute Frantz, (2) finding that Frantz's evidence was substantial enough to rebut the presumption of probable cause, (3) inferring malice without evidence, and (4) failing to recognize Duffey's testimonial immunity before the grand jury. Consequently, Duffey claims that he is entitled to qualified immunity on the malicious prosecution claim, relying on Ohio malicious prosecution law. Plaintiffs respond that the district court properly denied Duffey's motion for summary judgment because it found genuine issues of material fact to be in dispute. The district court opinion explained that:

Whether Duffey made false statements about Frantz's conduct depends, of course, upon whose version of events is credited . . . Frantz insists that he did nothing to provoke Duffey or otherwise to warrant his arrest. Conversely, Duffey contends that Frantz was loud and belligerent, and that he assaulted the officer and resisted arrest. It is axiomatic, however, that the Court may not make credibility determinations or weigh conflicting evidence in the context of a motion for summary judgment.

While we agree that there are issues of fact with respect to Duffey's part in the prosecution aside from his grand jury testimony, this case also presents the court with the pure legal question of the validity of plaintiff's underlying claim, as a separate constitutional claim. As discussed in detail below, we find it necessary to evaluate whether plaintiff's claim, from which appellant seeks immunity, is in fact a cognizable constitutional claim. As a result of that question of law, we find that we do have jurisdiction to review appellant's claim, and we therefore proceed below.

B.

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