Summers v. Leis, 03-3347.

Decision Date21 May 2004
Docket NumberNo. 03-3347.,03-3347.
Citation368 F.3d 881
PartiesTerry SUMMERS, Plaintiff-Appellee, v. Simon LEIS, Sheriff, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Kenneth L. Lawson (briefed), Lawson & Associates, Cincinnati, OH, for Plaintiff-Appellee.

David Todd Stevenson (briefed), Joseph M. Hutson (briefed), Hamilton County Prosecuting Office, Cincinnati, OH, for Defendant-Appellant.

Before: BATCHELDER and COLE, Circuit Judges; HOOD, District Judge.*

OPINION

HOOD, District Judge.

Terry Summers ("Summers") brought this 42 U.S.C. § 1983 action against Hamilton County Sheriff Simon Leis ("Leis"), certain unnamed deputies employed by him, and Hamilton County, Ohio, alleging, in part, violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution. Leis appeals the district court's orders denying his motion for summary judgment on the grounds of qualified immunity and Younger abstention "without prejudice to resubmission," and entering a scheduling order requiring full discovery. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

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 American 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 Ohio Revised Code § 2917.11 and carrying concealed weapons in violation of Ohio Revised Code § 2923.12.1 These charges are currently pending in the Hamilton County Municipal Court.2 Summers has filed motions contesting the validity of his arrests on First Amendment grounds in the Hamilton County Municipal Court.

On September 24, 2002, while the charges against Summers were pending in the Hamilton County Municipal Court, Summers filed a 42 U.S.C. § 1983 complaint in the United States District Court, Southern District of Ohio, alleging, in part, violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution. The complaint appears to assert two distinct causes of action. The first, entitled "First Claim for Relief Injunction," relies on the First Amendment and asks the Court to permanently enjoin Leis from arresting him for engaging in protests and symbolic speech. The second cause of action seems to assert a claim based on alleged violations of the First and Fourteenth Amendments for arresting and incarcerating Summers for a minor misdemeanor in violation of Ohio law. Summers sought a declaration from the district court that the acts complained of are unconstitutional, an order permanently enjoining defendants from the "unconstitutional violations complained of," and damages based on his state law claims.3

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 February 18, 2003, the district court also entered a scheduling order for the completion of discovery. A timely notice of appeal was filed.

II. STANDARD OF REVIEW

We review a grant or denial of summary judgment de novo, using the same Fed.R.Civ.P. 56(c) standard as the district court. Cox v. Kentucky Department of Transportation, 53 F.3d 146, 149 (6th Cir.1995) (citing Hansard v. Barrett, 980 F.2d 1059 (6th Cir.1992)). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, we view the factual evidence and draw all reasonable inferences in favor of the non-moving party. National Enterprises v. Smith, 114 F.3d 561, 563 (6th Cir.1997). To prevail, the non-movant must show sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 341-42 (6th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). A mere scintilla of evidence is insufficient; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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 Country 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 decision 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 Fed.R.Civ.P. 56(f) affidavit.

1. Jurisdiction

Jurisdiction in this matter arises under 28 U.S.C. § 1291, granting jurisdiction to hear appeals from final judgments of district courts. Generally, a denial of summary judgment is not a final judgment for purposes of appeal. Hoover v. Radabaugh, 307 F.3d 460, 465 (6th Cir.2002); Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Courts, however, have recognized that, under certain circumstances, denials of qualified immunity on summary judgment by a district court may be appealed as a collateral order.

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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 817, 102 S.Ct. 2727). 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...

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