656 F.3d 365 (6th Cir. 2011), 09-4369, Thompson v. Grida

Docket Nº:09-4369.
Citation:656 F.3d 365
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:Darryl THOMPSON, Plaintiff-Appellee, v. Michael GRIDA, Defendant, David Roose; Steve Shuburt; Officer Olszewski; Officer Kelly, Defendants-Appellants.
Attorney:Patrick Gallagher, Allan & Gallagher, Cleveland, Ohio, for Appellants. Michael J. Cheselka, Jr., Cleveland, Ohio, for Appellee. Patrick Gallagher, Allan & Gallagher, Cleveland, Ohio, for Appellants. Michael J. Cheselka, Jr., Cleveland, Ohio, for Appellee.
Judge Panel:Before: McKEAGUE and STRANCH, Circuit Judges; MAYS, District Judge. [*]
Case Date:September 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 365

656 F.3d 365 (6th Cir. 2011)

Darryl THOMPSON, Plaintiff-Appellee,

v.

Michael GRIDA, Defendant,

David Roose; Steve Shuburt; Officer Olszewski; Officer Kelly, Defendants-Appellants.

No. 09-4369.

United States Court of Appeals, Sixth Circuit.

September 8, 2011

Argued: March 8, 2011.

ARGUED:

Patrick Gallagher, Allan & Gallagher, Cleveland, Ohio, for Appellants.

Michael J. Cheselka, Jr., Cleveland, Ohio, for Appellee.

ON BRIEF:

Patrick Gallagher, Allan & Gallagher, Cleveland, Ohio, for Appellants.

Michael J. Cheselka, Jr., Cleveland, Ohio, for Appellee.

Before: McKEAGUE and STRANCH, Circuit Judges; MAYS, District Judge. [*]

Page 366

OPINION

JANE B. STRANCH, Circuit Judge.

In this civil-rights action, Darryl Thompson alleges he was arrested without probable cause and the arresting officers used excessive force. Police officers Roose, Shuburt, Olszewski, and Kelly appeal the district court's denial of their motion for summary judgment on qualified immunity grounds. Because the officers rely entirely on disputed facts in their appeal, we DISMISS the appeal for lack of jurisdiction and REMAND for trial.

I. BACKGROUND

Thompson alleges the following occurred in February 2007. While he was preparing to go to work, he and his wife learned from neighborhood children of a problem on the school bus involving Maya, their ten year old daughter. Mr. and Mrs. Thompson went immediately to the bus stop. As they approached, they saw police cars and a school bus; they could not see their daughter, but they saw their 15 year old son being held against a police car. They told one of the officers they were the parents of the girl involved in the altercation and asked where their daughter was. The officer only responded by shouting, " Get back. Get back. Get back. Get back," and they complied.

Officer Shuburt then approached Mrs. Thompson. After hearing his wife yell " don't hit me, don't put your hands on me" to Shuburt, Thompson stepped between his wife and Officer Shuburt. Thompson faced Shuburt, intending to defuse the situation. He asked if Shuburt put his hands on Mrs. Thompson, to which Shuburt replied, " No, I shoved her." Thompson told his wife to return to their car. When Thompson turned back to face Shuburt, the officer grabbed him and began to kick him on his right side and groin. Other officers joined in and sprayed his face with pepper spray. After the first spray, the officers hit Thompson across his face, knocked off his glasses and shot his eyes with pepper spray again. Thompson states that he did not...

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