Kennedy v. City of Cincinnati, 052312 FED6, 11-3212

• Docket Nº: 11-3212
• Opinion Judge: CLELAND, District Judge.
• Party Name: ROBERT KENNEDY, Plaintiff-Appellant, v. CITY OF CINCINNATI; J. ZUCKER; DAVID HUDEPOHL, Defendants-Appellees,
• Judge Panel: BEFORE: DAUGHTREY and CLAY, Circuit Judges; and CLELAND, District Judge.
• Case Date: May 23, 2012
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

ROBERT KENNEDY, Plaintiff-Appellant,

v.

CITY OF CINCINNATI; J. ZUCKER; DAVID HUDEPOHL, Defendants-Appellees,

No. 11-3212

United States Court of Appeals, Sixth Circuit

May 23, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY and CLAY, Circuit Judges; and CLELAND, District Judge. ^[*]

OPINION

CLELAND, District Judge.

Plaintiff-Appellant Robert Kennedy lost at trial on a procedural-due-process claim under 42 U.S.C. § 1983 against Defendant-Appellee Jeff Zucker. Kennedy now appeals the district court's denial of his pretrial motion for summary judgment. Zucker contends in a motion to dismiss that the order denying summary judgment is by nature interlocutory, and we therefore lack jurisdiction under the Supreme Court's decision in Ortiz v. Jordan, 131 S.Ct. 884 (2011). We agree and DISMISS the appeal.

On June 21, 2007, Zucker, a Cincinnati Police Officer, expelled Kennedy from a swimming pool owned and operated by the City of Cincinnati, based upon accusations from pool staff that Kennedy had been lurking in the pool area to watch children swim. Kennedy challenged the revocation of his pool pass, and the resulting ban from public property, in the United States District Court for the Southern District of Ohio. He alleged, in part, that Zucker had deprived him of a constitutionally protected liberty interest in access to public spaces without affording him notice and the opportunity to be heard. The district court denied both Kennedy's and Zucker's motions for summary judgment, Kennedy v. City of Cincinnati, No. 07–cv–512, 2009 WL 87423 (S.D. Ohio Jan. 12, 2009), and this Court affirmed the denial of Zucker's motion, which asserted qualified immunity, Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir. 2010). After a trial on the merits was held and the jury returned a verdict for Zucker, Kennedy filed a notice of appeal addressing only the district court's denial of his summary judgment motion.

This Court's jurisdiction extends only to appeals from "final decisions" of a district court. 28 U.S.C. § 1291. In Ortiz, the Supreme Court clarified that, "[o]rdinarily, orders denying summary judgment do not qualify as 'final decisions' subject to appeal." 131 S.Ct. at 891. As the Court explained: "Summary judgment must be denied when the court of first instance determines that a 'genuine dispute as to [a] material fact' precludes immediate entry...