Berryman v. Rieger, 96-2337

Citation150 F.3d 561
Decision Date06 July 1998
Docket NumberNo. 96-2337,96-2337
PartiesPhilip BERRYMAN, Plaintiff-Appellee, v. Dean RIEGER, C. Kukla, Diane Holzheuer, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Philip W. Berryman, pro se.

John B. Payne (argued and briefed), Dearborn, Michigan, for Plaintiff-Appellee.

Linda M. Olivieri (argued and briefed), Office of the Attorney General, Corrections Division, Lansing, Michigan, for Defendants-Appellants.

Before: MERRITT, NORRIS, and WALLACE, * Circuit Judges.

OPINION

MERRITT, Circuit Judge.

In yet another in a long line of § 1983, interlocutory, qualified immunity appeals raising factual issues, we must first decide whether we have appellate jurisdiction. This depends on whether there is a pure issue of constitutional tort law to be determined separable from the factual issues. The District Court denied qualified immunity to a prison doctor and two nurses sued by the plaintiff, who claims that the defendants refused to give him medical treatment in retaliation for a lawsuit he had previously filed against another nurse. Our decision follows the Supreme Court's opinion in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), which simply applied the principles of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We hold that in order for such an interlocutory appeal based on qualified immunity to lie, the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiff's case.

Here the defendants have not so conceded the facts. The appeal should not have been filed because there is clearly a factual dispute at the heart of the qualified immunity issue, and so we dismiss this interlocutory appeal. 1 Moreover, in light of the fact that three and a half years ago a panel of this Court sent this case, originally filed in 1992, back to the District Court pointing out in detail that there are genuine issues of material fact for trial on the constitutional tort claims at issue, Berryman v. Regiler, 47 F.3d 1167, 1995 WL 31575 (6th Cir.1995) (unpublished, Jan. 26, 1995) (a copy of which is attached as an Appendix to this opinion), we impose upon the defendants double costs and attorney's fees under 28 U.S.C. § 1912 for bringing this appeal and unnecessarily protracting the litigation. The Clerk of the Court shall initially determine such costs and attorney's fees upon submission of documents by the parties and may conduct whatever hearings are necessary as a special master in order to make such a determination.

When the District Court denies qualified immunity to government officials on summary judgment, our jurisdiction to hear an interlocutory appeal of that ruling is narrow. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held "that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291." Id. at 530, 105 S.Ct. 2806. The court emphasized, however, that appellate jurisdiction over these interlocutory appeals is confined to the "purely legal" question of "whether the facts alleged ... support a claim of violation of clearly established law." Id. at 528 n. 9, 105 S.Ct. 2806.

Ten years later, in response to the vast growth of interlocutory appeals on grounds of qualified immunity, the Supreme Court again stressed the narrow scope of jurisdiction over these appeals in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In Johnson, Justice Breyer wrote for a unanimous Court that collateral "questions about whether or not a record demonstrates a 'genuine' issue of fact for trial, if appealable, can consume inordinate amounts of appellate time." Id. at 316, 115 S.Ct. 2151. The Court held that "a defendant, entitled to invoke a qualified immunity defense, may not appeal 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." Id. at 319-20, 115 S.Ct. 2151. To permit jurisdiction over fact-intensive questions of qualified immunity, the court stated, would undercut the expertise of trial courts, invite delay, and waste appellate resources on the same issues that will arise after trial. Id. at 316-17, 115 S.Ct. 2151. Accordingly, the court limited our jurisdiction over interlocutory appeals of qualified immunity "to cases presenting neat abstract issues of law." Id. at 317, 115 S.Ct. 2151.

A year later, in an attempt to make the line as sharp as possible, the Supreme Court reiterated that jurisdiction exists over appeals from summary judgment denials only "when they resolve a dispute concerning an abstract issue of law relating to qualified immunity--typically, the issue whether the federal right allegedly infringed was clearly established." Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (internal quotations and citations omitted). In other words, if what is at issue in the appeal is nothing more than "whether the evidence could support a finding that particular conduct occurred," there is no appellate jurisdiction because that question is inseparable from the merits of the plaintiff's claim. Id.

A defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law. Behrens, 516 U.S. at 313, 116 S.Ct. 834; Johnson, 515 U.S. at 317, 115 S.Ct. 2151; Mitchell, 472 U.S. at 528, 105 S.Ct. 2806. If the defendant does not dispute the facts alleged by the plaintiff for purposes of the appeal, "our jurisdiction is clear." Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.1996). If, instead, the defendant disputes the plaintiff's version of the story, the defendant must nonetheless be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal. Id. Only if the undisputed facts or the evidence viewed in the light most favorable to the plaintiff fail to establish a prima facie violation of clear constitutional law may we decide that the defendant is entitled to qualified immunity on an interlocutory appeal. Turner v. Scott, 119 F.3d 425, 428 (6th Cir.1997).

Experience has shown us that which side of the fact-law line an individual case falls on may become clear only after the parties have fully briefed the case, even though the jurisdictional issue often comes up initially in a plaintiff's motion to dismiss the appeal or a show-cause order issued by our Court. Thus, the jurisdictional question ends up being addressed in cursory fashion long before the briefs are written and is answered in a pre-appeal order that assumes jurisdiction exists. By the time the case is argued, both the parties and the judges presume the jurisdictional question has already been answered and move on to the merits of the case.

The present case is a perfect example of these problems. Plaintiff Philip Berryman, an inmate in a Michigan prison filed this pro se lawsuit under 42 U.S.C. § 1983, claiming he was knocked off his feet by a floor buffer injuring his head and knees. Asserting violations of his rights under the First and Eighth Amendments, he contends Dr. Rieger, Nurse Kukla, and Nurse Holzheuer deliberately refused to treat his injuries in retaliation for a prior lawsuit he had filed against another nurse. The District Court initially granted the defendants summary judgment, but as previously stated, we reversed, finding the material facts were in dispute. See Appendix. On remand, the case proceeded through discovery, and the defendants again moved for summary judgment on qualified immunity grounds. A magistrate recommended denying this motion "because the material facts ... in dispute" made it impossible "to determine whether defendants' acts violated plaintiff's clearly established rights." The District Court adopted this recommendation without elaboration and denied summary judgment. The defendants then filed this interlocutory appeal.

Before the parties briefed their arguments, the Clerk of our Court issued an order asking the parties to show cause why the appeal should not be dismissed for lack of jurisdiction on the authority of Johnson and Behrens. The defendants responded in a letter assuring the court that their appeal involved three legal issues. Based upon this bare representation, the clerk entered an order stating, "The presence of these issues suggests that dismissal of this appeal would be inappropriate at this time." Ignoring the last three words, the defendants thought they had cleared the jurisdictional hurdle and did not discuss Mitchell, Johnson or Behrens in their brief. When the current panel received the briefs in advance of oral argument, we immediately questioned our authority to hear the appeal. Due to Berryman's motion challenging jurisdiction and the preliminary order denying it, the defendants erroneously thought we had already decided jurisdiction existed. We had not. We had merely stated dismissal was inappropriate at that time.

This explains why the bulk of our questions at oral argument focused on jurisdiction, which we could not adequately assess until the parties had completely presented their respective positions. Notwithstanding the defendants' jurisdictional statement in their brief that this appeal turns upon an issue of law and is therefore immediately appealable under Mitchell, it is now obvious that their appeal boils down to credibility determinations we cannot make. The defendants have contradicted Berryman's version of the facts at every turn. For example, the defendants point to the medical records as proof that Berryman's injuries were treated. But Berryman...

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