Diluzio v. Vill. of Yorkville

• Decision Date: 06 August 2015
• Docket Number: Nos. 14–3970,14–3971.,s. 14–3970
• Citation: 796 F.3d 604
• Parties: Angelo DILUZIO, Plaintiff–Appellee, v. VILLAGE OF YORKVILLE, OHIO, John Difilippo, and Kevin Klubert (14–3970); John Morelli and Jerry Davis (14–3971), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

796 F.3d 604

Angelo DILUZIO, Plaintiff–Appellee

v.VILLAGE OF YORKVILLE, OHIO, John Difilippo, and Kevin Klubert (14–3970); John Morelli and Jerry Davis (14–3971), Defendants–Appellants.

Nos. 14–3970

14–3971.

United States Court of Appeals, Sixth Circuit.

Aug. 6, 2015.

ON BRIEF:Robert H. Stoffers, Frank H. Scialdone, Jason R. Deschler, Mazanec, Raskin & Ryder Co., L.P.A., Columbus, Ohio, for Appellants in 14–3970. Michael J. Valentine, Melvin J. Davis, Reminger Co., LPA, Columbus, Ohio, for Appellants in 14–3971. James D. McNamara, Columbus, Ohio, for Appellee.

Before BATCHELDER, ROGERS, and KETHLEDGE, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

In this interlocutory appeal from the district court's denial of a claim of qualified immunity, the defendants argue that the plaintiff's evidence did not create genuine disputes of material fact so as to overcome summary judgment. For the reasons that follow, we establish our appellate jurisdiction and AFFIRM.

I.

The defendants in this case are the Village of Yorkville (Ohio), Mayor John DiFilippo, Fire Chief Kevin Klubert, Police Chief John Morelli, demolition contractor Greg Nemeth, and Police Officer Jerry Davis. The plaintiff, Angelo DiLuzio, owned three adjacent buildings in the heart of downtown Yorkville, and those buildings caught fire under suspicious circumstances. Fire Chief Klubert led the firefighting effort and coordinated with Mayor DiFilippo on a decision to demolish a portion of one of the burned buildings immediately, without any inspection or formal decision on the need for demolition. Fire Chief Klubert and Mayor DiFilippo had ordered Officer Davis to find DiLuzio and bring him to a meeting, which—against DiLuzio's wishes—he did. At that meeting, DiLuzio insisted the buildings could be repaired and he departed believing that the matter was ended. Mayor DiFilippo nonetheless ordered Nemeth to demolish most of the south building, though he left one wall standing and left the middle building intact, even though it had suffered the worst damage because the fire had started there.

Less than a week later, Police Chief Morelli (acting on orders from Mayor DiFilippo) approached DiLuzio's son with a low-ball offer from an anonymous investor, to purchase the property “as is.” DiLuzio declined and Chief Morelli approached DiLuzio himself with a similar, but lower, “as is” offer about two months later. DiLuzio declined again and Morelli, Klubert, and DiFilippo began to issue fire department citations to DiLuzio, threatening $600 per day fines until he cleaned up the property. When the Village solicitor dismissed the first of these citations, which had included false statements about inspections and authorizations, Morelli falsified and forged a State Fire Marshall citation threatening $1,000 per day fines. This too was dismissed after the State Fire Marshall revealed it was a forgery. The Village then passed a criminal ordinance concerning unkempt properties and Morelli charged DiLuzio under it, at one point falsely notarizing his own signature by using a rubber stamp of DiFilippo's signature.

Eventually, DiLuzio filed a 42 U.S.C. § 1983 action in federal court, claiming due process violations, among other things, as well as federal conspiracy charges and state law offenses. Basically, DiLuzio theorized that Mayor DiFilippo wanted him to sell his property to a developer, so DiFilippo had knowingly faked the emergency situation as an excuse to order the demolition and then used the threat of the huge daily fines to pressure DiLuzio to sell. DiLuzio has discovered and introduced into the record evidence that supports his theory.

The defendants moved for summary judgment, primarily on the basis of qualified immunity, but also on a basic theory that DiLuzio could not prove his claims. The district court granted summary judgment on several claims, but denied it on others. Specifically, as pertinent here, the court denied qualified immunity to Mayor DiFilippo and Fire Chief Klubert on the due process claim concerning demolition of the building, denied qualified immunity to Police Chief Morelli and Officer Davis on substantive due process claims, and denied qualified immunity to Nemeth because he was not a state actor. The court also denied summary judgment on the conspiracy claims and certain state law claims, and to the Village on final-decision-maker liability claims. All but Nemeth appealed, citing the denial of qualified immunity as a predicate jurisdictional claim and urging pendant appellate jurisdiction for their other claims.

II.

Qualified immunity shields government officials in the performance of discretionary functions from standing trial for civil liability unless their actions violate clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A plaintiff who brings a § 1983 action against such an official bears the burden of overcoming the qualified immunity defense. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir.2013). At the summary judgment stage, the plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was clearly established. Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient evidence to create a “genuine issue of fact,” that is, “evidence on which [a] jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Put another way, if the district court determines that the plaintiff's evidence would reasonably support a jury's finding that the defendant violated a clearly established right, the court must deny summary judgment. Cf. Quigley, 707 F.3d at 681. As the denial of summary judgment is ordinarily not a final decision within the meaning of 28 U.S.C. § 1291, it is generally not immediately appealable. But the “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 [ ] § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Thus, we may decide an appeal challenging the district court's legal determination that the defendant's actions violated a constitutional right or that the right was clearly established. Id. We may also decide an appeal challenging a legal aspect of the district court's factual determinations, such as whether the district court properly assessed the incontrovertible record evidence. See Plumhoff v. Rickard, 572 U.S. ––––, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014) ; Roberson v. Torres, 770 F.3d 398, 402 (6th Cir.2014). And we may decide, as a legal question, an appeal challenging the district court's factual determination insofar as the challenge contests that determination as “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Plumhoff, 134 S.Ct. at 2020 ; Roberson, 770 F.3d at 402 ; Austin v. Redford Twp. Police Dept., 690 F.3d 490, 496 (6th Cir.2012) (“In exceptional circumstances, an appellate court may overrule a district court's determination that a factual dispute exists where evidence in the record establishes that the determination is ‘blatantly and demonstrably false.’ ” (relying on Bishop v. Hackel, 636 F.3d 757, 769 (6th Cir.2011) )).

We may not, however, decide an appeal challenging the district court's determination of “ ‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Because such a challenge is purely fact-based, lacking any issue of law, it “does not present a legal question in the sense in which the term was used in Mitchell, ” Plumhoff, 134 S.Ct. at 2019, and is therefore not an appealable “final decision” within the meaning of 28 U.S.C. § 1291. These types of prohibited fact-based (“evidence sufficiency”) appeals challenge directly the plaintiff's allegations (and the district court's acceptance) of “what [actually] occurred [ ] or why an action was taken or omitted,” Ortiz v. Jordan, 562 U.S. 180, 190, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011), who did it, Johnson, 515 U.S. at 307, 115 S.Ct. 2151, or “nothing more than whether the evidence could support a [jury's] finding that particular conduct occurred,” Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). We have also held that a defendant may not challenge the inferences the district court draws from those facts, as that too is a prohibited fact-based appeal. Romo v. Largen, 723 F.3d 670, 673–74 (6th Cir.2013).¹ As a rule, we either dismiss these fact-based (“evidence sufficiency”) appeals for lack of jurisdiction or excise the prohibited challenge. See Behrens, 516 U.S. at 312–13, 116 S.Ct. 834 (“Denial of summary judgment often includes a determination that there are controverted issues of material fact and Johnson surely does not mean that every such denial of summary judgment is nonappealable.” (internal citation omitted)).

As a matter of practical application, this is merely to say that we may not decide a challenge directly to the district court's determination of the record-supported evidence or the inferences it has drawn therefrom, but we may decide a challenge with any legal aspect to it, no matter that it might encroach on the district court's fact-based determinations. See Roberson, 770 F.3d at 403 (“Plumhoff appears to cabin the reach of Johnson to purely factual issues that the trial court might confront if the case were tried.” (quotation marks omitted; emphasis added)); Family Serv. Ass'n v. Wells Tp., 783 F.3d 600, 607 (6th Cir.2015) (“Johnson applies to interlocutory appeals that solely contest the plaintiff's account of the facts.” (emphasis added)); see also Rudlaff v. Gillispie, 791 F.3d 638, 640–41 (6th...