Harvey v. Campbell County, 051011 FED6, 09-5041

Docket Nº:09-5041
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:APRIL ANN HARVEY, wife and next of kin to Ramsey Robert Harvey, deceased; and RYAN A. HARVEY, a minor child, by and through his mother and next friend, MISTY GILLIAM, Plaintiffs-Appellees, v. CAMPBELL COUNTY, TENNESSEE; RON McCLELLAN, individually and in his official capacity as former Sheriff of Campbell County; and CHARLES SCOTT, individually and
Judge Panel:Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges. MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and dissenting in part.
Case Date:May 10, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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APRIL ANN HARVEY, wife and next of kin to Ramsey Robert Harvey, deceased; and RYAN A. HARVEY, a minor child, by and through his mother and next friend, MISTY GILLIAM, Plaintiffs-Appellees,

v.

CAMPBELL COUNTY, TENNESSEE; RON McCLELLAN, individually and in his official capacity as former Sheriff of Campbell County; and CHARLES SCOTT, individually and in his official capacity as former Deputy Sheriff of Campbell County, Defendants-Appellants.

No. 09-5041

United States Court of Appeals, Sixth Circuit

May 10, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

In this civil rights action, presenting claims under 42 U.S.C. § 1983 and the Tennessee Governmental Tort Liability Act, defendants – Campbell County, former Campbell County Sheriff Ron McClellan, and his former Chief Deputy, Charles Scott – appeal the district court's order denying them summary judgment. The litigation arises out of the death of Ramsey Robert Harvey, who was shot and killed by Richard Lowe, then a Campbell County Sheriff's Deputy. The action is brought by Harvey's wife, April Ann Harvey, and his son, Ryan A. Harvey. Liability is predicated on claims of inadequate screening of Lowe prior to hiring and failure to train and supervise him in the use of deadly force. The district court granted defendants summary judgment on the screening claim but denied summary judgment on the failure-to-train claim, finding that defendants had "failed to meet their burden of establishing an absence of genuine issues of material fact." The court also rejected the individual defendants' request for qualified immunity on the same basis. Because we conclude that the district court's ruling is based in part on a misapplication of the standards governing summary judgment practice, we conclude that a pure question of law is presented over which we have jurisdiction. We further conclude that this misapplication of law resulted in reversible error. For the reasons more fully explained below, we reverse the denial of summary judgment to defendants on plaintiff's § 1983 failure-to-train claim.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Deputy Lowe began pursuing Harvey in his patrol car in the early morning hours on December 23, 2005, but the record fails to show why. Lowe radioed the Sheriff's Department dispatch to report that he was in pursuit, and when Harvey stopped his car a few minutes later, Lowe called for backup. Both Lowe and Harvey apparently got out of their vehicles and, within three minutes, during the ensuing encounter, Lowe shot Harvey in the head. Harvey died two days later from the gunshot wound. In the meantime, Lowe justified the shooting in a statement to a local newspaper reporter by explaining that Harvey was armed with a knife when he got out of his car and refused to stop or put the knife down in response to Lowe's instruction, forcing Lowe to shoot in self-defense. This statement turned out to be false, however.

As a result of the fatal shooting, the Campbell County Sheriff's Department placed Lowe on administrative leave, and the Tennessee Bureau of Investigation (TBI) was called in to investigate. Approximately one week after the incident, Lowe took and failed a polygraph test administered by the TBI. He then admitted that he had planted a knife at the scene of the shooting. The next day, Lowe was discharged from the Sheriff's Department for tampering with evidence at a crime scene. He was later indicted on three felony charges—fabricating evidence, making a false police report, and engaging in official misconduct—and pleaded guilty to all three offenses.

Plaintiffs, Harvey's wife and son, originally filed suit in the Circuit Court for Campbell County, Tennessee, stating claims under 42 U.S.C. § 1983 and the Tennessee Governmental Tort Liability Act, Tennessee Code Annotated §§ 29-20-101 to


408, against Lowe and defendants Campbell County, former Sheriff McClellan, and former Chief Deputy Scott. Defendants removed the action to the District Court for the Eastern District of Tennessee. The district court dismissed Lowe from the suit, without prejudice, after three attempts to serve him proved unsuccessful. The court subsequently granted summary judgment to the remaining defendants on plaintiffs' claim that defendants inadequately screened Lowe before hiring him. However, the district court denied summary judgment on the claim that defendants failed to train Lowe adequately and on McClellan's and Scott's qualified immunity defense. The individual defendants now appeal, arguing that the district court erred in denying them qualified immunity. Recognizing that issues involving Campbell County are not otherwise reviewable on an interlocutory basis, the County predicates pendent appellate jurisdiction on its contention that those issues are "inextricably intertwined" with the matter of qualified immunity, over which the court properly has jurisdiction.

II. JURISDICTION

We have appellate jurisdiction over final decisions of the district court under 28 U.S.C. § 1291. A denial of summary judgment is not ordinarily considered a final decision, but a denial of summary judgment to a defendant raising the defense of qualified immunity is appealable on an interlocutory basis under the collateral order doctrine "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). See also Chappell v. City of Cleveland, 585 F.3d 901, 905 (6th Cir. 2009); Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008); Leary v. Livingston County, 528 F.3d 438, 447 (6th Cir. 2008). This exception is narrow, however. Appellate jurisdiction exists "only to the extent that a summary judgment order denies qualified immunity based on a pure issue of law." Leary, 528 F.3d 447-48 (quoting Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006)). A defendant may not appeal the denial of qualified immunity if the district court's order was based on a question of "evidence sufficiency" rather than "the application of 'clearly established' law to a given (for appellate purposes undisputed) set of facts." Johnson v. Jones, 515 U.S. 304, 313 (1995).

Here, the district court granted summary judgment to defendants in part, but denied summary judgment on plaintiffs' claim that defendants had failed to train and supervise Lowe in the use of deadly force. The court held that defendants had "failed to meet their burden of establishing an absence of genuine issues of material fact." In so ruling, the court misapplied the Supreme Court's teaching on summary judgment practice. It is not for the moving party to establish the absence of a triable fact issue, but for the nonmovant to establish the existence of one. Yes, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). But there is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. (emphasis in original).

Contrary to the district court's reasoning in this case, Celotex teaches that the moving party need not "show the absence of a genuine issue of material fact, " but discharges its initial burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the party moving for summary judgment has satisfied its burden, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

Here, as more fully explained below, defendants carried their initial burden by pointing out an absence of evidence tending to satisfy any of three essential elements of plaintiffs' claim, i.e., that Lowe's training was inadequate, that any inadequacy resulted from defendants' deliberate indifference, and that the inadequacy was closely related to plaintiffs' injury. Plaintiffs, in responding, did not present any evidence of specific facts tending to establish any off these three elements. Instead, they argued simply that the defendants' showing of the adequacy of Lowe's training is inconclusive and therefore insufficient to demonstrate the absence of a genuine issue of material fact. Though this is precisely the argument rejected in Celotex, the district court accepted it as persuasive.

We acknowledge that the denial of summary judgment appears to be based on factual issues, not a pure question of law. "Yet, the district court's characterization of the basis for its ruling does not necessarily dictate the availability of appellate review." Chappell, 585 F.3d at 906; see also Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 402-03 (6th Cir. 2007); Estate of Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005). "If, apart from impermissible arguments regarding disputes of fact, defendants raise purely legal issues bearing on their entitlement to qualified immunity, then there are issues properly subject to appellate review." Chappell, 585 F.3d 906. "Hence, the district court's determination that there is a factual dispute does not necessarily preclude appellate review where the ruling also hinges on...

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