Roberson v. Torres

• Citation: 770 F.3d 398
• Decision Date: 21 October 2014
• Docket Number: No. 13–1405.,13–1405.
• Parties: Nicholas ROBERSON, Plaintiff–Appellee, v. James TORRES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

770 F.3d 398

Nicholas ROBERSON, Plaintiff–Appellee
v.
James TORRES, Defendant–Appellant.

No. 13–1405.

United States Court of Appeals, Sixth Circuit.

Argued: March 20, 2014.
Decided and Filed: Oct. 21, 2014.

770 F.3d 400

ARGUED:Michael R. Dean, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Thomas J. Rheaume, Jr., Bodman, PLC, Detroit, Michigan, for Appellee. ON BRIEF:Michael R. Dean, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Thomas J. Rheaume, Jr., Bodman, PLC, Detroit, Michigan, for Appellee.

Before: BOGGS, SILER, and GIBBONS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

This is an interlocutory appeal from the denial of qualified immunity. Nicholas Roberson, a Michigan state prisoner, alleges, as relevant to this appeal, that James Torres, a former sergeant with the Michigan Department of Corrections (“MDOC”), violated his constitutional rights. In particular, Roberson alleges that Torres sprayed him with a chemical agent while he was sleeping, in violation of the Eighth Amendment. The district court denied Torres qualified immunity and ruled that a genuine issue exists as to whether Roberson was in fact sleeping at the time he was sprayed and, if so, whether Torres's actions constituted excessive force. We affirm.

I

On March 13, 2009, while Roberson was incarcerated at a Michigan correctional facility where Torres worked as a corrections officer, Torres came to Roberson's cell and ordered Roberson to back up to the cell door to be placed in restraints. When Roberson did not comply, Torres sprayed a chemical agent into the cell.

Torres issued Roberson a major-misconduct ticket for his failure to comply with the order. At a subsequent misconduct hearing, Roberson claimed that he did not understand Torres's order because he was

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asleep when it was given and did not awaken until after Torres deployed gas into his cell. Roberson claimed that, although he had been awake and had refused to come out of his cell earlier, “during first shift,” he had subsequently fallen asleep. The hearing investigator continued the hearing in order to obtain a response from Torres.

Another hearing officer reconvened the hearing on April 8, 2009, after reviewing the prior hearing report and the investigator's notes concerning Torres's statement. At this second hearing, Roberson apparently requested a review of the videotaped recording of the incident. The second hearing report states:

[Roberson] is told this hearing officer is not persuaded the sergeant gave an order when he was sleeping. When this hearing officer continues to discuss the above, prisoner talks above her and is told in a second he will be removed if he does not stop and he then tells the officer “let's go” and leaves the hearing room. Prisoner has voluntarily waived his right to remain at the hearing. It is properly continued without him.

The second hearing report then concludes:

The review is concise and persuasive. Prisoner declined the investigator, documents and witnesses at review. He made no comment he was sleeping at this time. This hearing officer would not have adjourned [the earlier] hearing as he did not reasonably cooperate with the process or investigator. Nonetheless, it was adjourned for an additional statement from the sergeant. Prisoner made no prior request for a video. His request is denied. He again did not reasonably cooperate in making this request. I find prisoner was given an order to back up to the cell food slot to be restrained. This is a valid and reasonable order. I am unconvinced the sergeant gave this order to a sleeping prisoner. I find the sergeant is clear prisoner was standing at the window looking at him, it was given from approximately three feet and prisoner made a comment about staff can't make him go on his medical run. I am convinced prisoner heard and understood the order.

Roberson brought this suit in federal district court alleging violations of his rights under the First, Eighth, and Fourteenth Amendments. Torres sought qualified immunity, but the district court denied the motion. Torres then filed this interlocutory appeal seeking review of the district court's order on two grounds. First, he argues that Roberson should have been precluded from asserting his claim. Roberson was issued a “major misconduct ticket” for disobeying Torres's order, and the hearing officer at his misconduct hearing found him guilty of the charge. Torres argues that, under Peterson v. Johnson, 714 F.3d 905 (6th Cir.2013), the district court should have given preclusive effect to the hearing officer's factual determination that Roberson was awake, and that he had heard Torres's order but disobeyed it. Second, Torres argues that he would be entitled to qualified immunity even if Roberson were asleep at the time that Torres sprayed him. Roberson concedes that he was covered from head to toe in his blanket, and Torres argues that spraying Roberson under those circumstances would not have violated clearly established law. Roberson counters that Torres would not be entitled to qualified immunity if he sprayed a sleeping prisoner covered in his blanket; that the hearing officer's finding should not be given preclusive effect in this case; and that, in any event, we lack jurisdiction to entertain the preclusion question on interlocutory appeal.

II

We address the jurisdictional issue first. On interlocutory review of the

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denial of qualified immunity, we may not review “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.” Johnson v. Jones, 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Rather, we must “separate an appealed order's reviewable determination (that a given set of facts violates clearly established law) from its unreviewable determination (that an issue of fact is ‘genuine’).” Id. at 319, 115 S.Ct. 2151. In a recent decision, the Supreme Court clarified that the reason that the order in Johnson was not immediately appealable was that “it merely decided a question of evidence sufficiency, i.e., which facts a party may, or may not, be able to prove at trial.” Plumhoff v. Rickard, –––U.S. ––––, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014) (citations and quotation marks omitted). That is a question that “is closely related to other determinations that the trial court may be required to make at later stages of the case,” and one that “appellate courts have no comparative expertise over trial courts” in resolving. Ibid. (citations and quotation marks omitted). On the other hand, appellate courts have jurisdiction over “legal issues.” Ibid. Those legal issues may even include questions that would appear to touch on evidence sufficiency less directly, such as whether “an immediate appeal may be taken to challenge ‘blatantly and demonstrably false’ factual determinations.” Id. at 2018 (citation omitted); see also Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Thus, a court of appeals would appear to have jurisdiction over so related a question as whether the district court properly adopted the plaintiff's version of the facts for purposes of ruling on the issue of qualified immunity. Plumhoff, 134 S.Ct. at 2020 (“The District Court order here is not materially distinguishable from the District Court order in Scott v. Harris, and in that case we expressed no doubts about the jurisdiction of the Court of Appeals under § 1291.”).

Roberson argues that we lack jurisdiction to decide Torres's preclusion claim. He notes that Torres's brief presents the issue as: “Did the district court err when it found there was a question of fact whether Roberson was awake and heard the order?” Appellee's Br. at 14 (citing Appellant's Br. at 2) (emphasis omitted). Roberson claims that the question falls plainly in the category of unreviewable determinations as to whether a genuine issue of fact exists.

Torres counters as follows: “[A]ppellate review is appropriate to determine whether a defendant's actions violated clearly established law. In this case the district court incorrectly determined that, as a matter of law, Roberson's version of the facts created a question of fact when, under Peterson, this Court holds that a hearing officer's factual determinations have preclusive effect in 42 U.S.C. § 1983 actions.” Reply Br. at 3.

Applying Johnson has not been easy. See Romo v. Largen, 723 F.3d 670, 686 (6th Cir.2013) (Sutton, J., concurring) (noting that “every circuit in the country has some decisions that adopt my reading of [Johnson ] and some that adopt the majority's”). Indeed, the Supreme Court in Johnson recognized that appellate courts would sometimes have “great difficulty” in separating reviewable from non-reviewable issues on interlocutory appeal. Johnson, 515 U.S. at 319, 115 S.Ct. 2151. But the Court in Johnson offered the following general guidance: “interlocutory appeals of qualified immunity matters” should be limited “to cases presenting more abstract issues of...