Younes v. Pellerito

Citation739 F.3d 885
Decision Date09 January 2014
Docket NumberNo. 13–1103.,13–1103.
PartiesMustapha Hassan YOUNES, Plaintiff–Appellee, v. Officer Christopher PELLERITO, Officer Tim Ciochon, and Sgt. Joanne Beedlepeer, in individual and official capacities, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ON BRIEF:Joseph Nimako, Cummings, Mcclorey, Davis & Acho, P.L.C., Livonia, Michigan, for Appellants. Jeffrey Z. Dworin, Bloomfield Hills, Michigan, Matthew C. Brown, Brown & Brown, P.L.C., Bloomfield Hills, Michigan, for Appellee.

Before: McKEAGUE and STRANCH, Circuit Judges; COLLIER, District Judge.*

OPINION

JANE B. STRANCH, Circuit Judge.

Plaintiff Mustapha Younes brought this civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights and raising Michigan state law claims. The alleged violations occurred during his arrest by defendants Officer Timothy Ciochon, Officer Christopher Pellerito, and Sergeant Joanne Beedle–Peer (collectively, the officers). The officers appeal the district court's order denying them qualified immunity and state law governmental immunity. They fail to concede the most favorable view of the facts to Younes on the qualified immunity issue and also fail to demonstrate that no genuine issues of material fact remain on the state law governmental immunity issues. We therefore dismiss the qualified immunity appeal for lack of jurisdiction, and affirm the denial of summary judgment on the state law claims.

I. BACKGROUND

On the evening of June 9, 2010, the officers were on duty with the City of Dearborn Heights police department. The following facts, as described by the district court, are not in dispute:

On the evening of June 9, 2010, plaintiff's neighbor, Rabee Yassine (“Yassine”), called the City's police department and reported that plaintiff was standing in his front yard and staring into his kitchen window. Yassine told the police that plaintiff appeared to be intoxicated. Within minutes, Sergeant Joanne Beedle–Peer arrived at the scene and briefly interviewed Yassine. After obtaining the relevant details of the incident, she crossed the street and approached plaintiff's home.

R. 34, D. Ct. Order, Page ID 729 (citations omitted). From this point on, the parties' accounts of what occurred diverge. The district court laid out Younes's account as follows:

He testified (at times through an interpreter) that he was relaxing on his front porch when his dog noticed a rabbit across the street in Yassine's yard and gave chase. Plaintiff dashed across the street to retrieve the dog from Yassine's front yard when he saw “one guy [presumably Yassine], he jump in windowand he talk something, and I tell him leave me alone.” Plaintiff then returned to his seat on his own front porch when a police officer attacked him without warning. He described the altercation as follows:

“I see police, he hit me. I don't know, first time, I don't know is a police officer, I don't know. I heard him. I heard him but I'm [sic] not see him. Because since he spray my eyes and he hit me on my head and he hit me next one, he hit me left and right. I mean this only thing I see. He tell me-I hear him, he tell me I'm police officer ... [he] spray something in my eyes, and you [sic] hit me on my head, you not ask me for anything.”

The officers, which plaintiff numbered at more than five, allegedly kicked him and struck him repeatedly across his head, back and arms as they forced him to the ground. Plaintiff never attested that the female officer touched him in anyway and denied that he had consumed alcohol prior to his confrontation with defendants.

After they arrested him, the officers placed plaintiff in their patrol car so they could transport him to the police station. According to plaintiff, during the course of the drive, the officers allegedly pulled over and continued to beat plaintiff and “sprayed ... [his] mouth.” Plaintiff could not identify any of the officers that either beat or sprayed him.

R. 34, D. Ct. Order, Page ID 730–31 (citations omitted).

Another of Younes's neighbors, Paula Kania, witnessed the incident. She testified that she saw two male police officers strike Younes, one punching him and one kicking him, and that after beating him up, the officers drove off and Younes got up and walked away.

The officers' account of the incident differs substantially from Younes's. According to their account, Sergeant Beedle–Peer first spoke to Yassine when she arrived on the scene and Yassine told her that Younes was an alcoholic. Sergeant Beedle–Peer then walked over to Younes's property where he was sitting on his front porch and asked him if he had gone onto Yassine's property. He did not respond and appeared angry. Sergeant Beedle–Peer testified that Younes attempted to stand up, but was unsteady on his feet and that when she asked him if he had been drinking he again failed to respond. While she was speaking with Younes, Officers Ciochon and Pellerito arrived. According to Officer Ciochon, Sergeant Beedle–Peer waved them over to the porch, telling them to quickly get up to the house. The three officers testified that Younes's breath smelled of alcohol, though Officer Ciochon said that he did not see a bottle.

The three officers and the neighbor who called the police, Yassine, testified that Younes lunged at Officer Beedle–Peer and that Officers Pellerito and Ciochon then took him to the ground and arrested him. Sergeant Beedle–Peer attested that while she never touched Younes, she did not recall if she had assisted in pulling him to the ground. Officer Ciochon testified that Sergeant Beedle–Peer was standing on the ground in front of the porch and that he and Officer Pellerito had to go up on the porch to bring Younes to the ground after Younes lunged at Sergeant Beedle–Peer because Younes stayed on the porch behind the railing and refused to come down.

According to the officers' account, they arrested Younes, put him in Officer Ciochon and Pellerito's patrol car, and drove directly to the police station. Younes hit the front of his head against the rear cage of the patrol car multiple times during the drive. The patrol car video confirms that Younes hit his head against the rear cage and that Officers Ciochon and Pellerito drove directly to the police station, contradicting Younes's account as to what happened once he was in the car.

Younes also submitted evidence of his medical records from the incident. These note a closed head injury, jaw and foot/ankle contusions, and a hand fracture. Younes also saw a dentist for a broken tooth he claimed was related to this incident. Subsequent medical examinations have shown persistent symptoms “suggestive of impaired consciousness.”

Younes brought suit against the officers and the City of Dearborn Heights under 42 U.S.C. § 1983. The complaint alleged that the officers violated Younes's constitutional rights by arresting him without probable cause and using excessive force. The complaint also brought state claims for false arrest, false imprisonment, malicious prosecution, battery, and gross negligence. The defendants filed a motion for summary judgment on the basis of qualified immunity for the constitutional claims and governmental immunity for the state law claims. The district court granted summary judgment on the state law claims of gross negligence as to the officers and battery as to Sergeant Beedle–Peer. It denied summary judgment on the other claims, finding that genuine issues of material fact remained. The officers appeal the denials of immunity.

II. ANALYSIS

This appeal comes to us prior to resolution of all claims in the litigation. It challenges the district court's rulings regarding two distinct defenses—qualified immunity from liability under § 1983 and state law governmental tort immunity. Because final judgment has not been entered below, our jurisdiction over the § 1983 qualified immunity defense arises under the collateral order doctrine and depends upon the existence of “neat abstract issues of law,” as distinct from factual disputes. Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir.2008) (internal quotation marks omitted) (observing that to the extent the defendant's arguments contest the plaintiff's version of the facts, we lack appellate jurisdiction). Because the denial of state law governmental tort immunity is a final order under Michigan law, we have appellate jurisdiction over an interlocutory appeal from the district court's denial of the defense of state law immunity. Bennett v. Krakowski, 671 F.3d 553, 560 (6th Cir.2011). For Younes's pendent state law claims, therefore, we evaluate the propriety of denying a summary judgment motion asserting state governmental tort immunity by applying the substantive law of Michigan and our own procedural law. See Smith v. Cnty. of Lenawee, 600 F.3d 686, 690 (6th Cir.2010).

A. Qualified Immunity

The collateral order doctrine provides this court with jurisdiction to hear an interlocutory appeal of a denial of qualified immunity. See Chappell v. City of Cleveland, 585 F.3d 901, 905 (6th Cir.2009). It applies only to the extent that the denial was based on “pure questions of law.” Leary v. Livingston Cnty., 528 F.3d 438, 447–48 (6th Cir.2008). “A defendant challenging a denial of summary judgment on qualified immunity grounds must be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir.2011) (internal quotation marks omitted). Where a defendant relies instead on her own disputed view of the facts, “the appeal boils down to issues of fact and credibility determinations that we cannot make.” Id. In such cases, we lack jurisdiction. Id.

The officers state that they are conceding the view of the facts most favorable to Younes, yet their arguments dismiss or ignore relevant aspects of Younes's account and treat their own account of the facts as undisputed. Among the...

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