Everson v. Leis

Decision Date20 February 2009
Docket NumberNo. 07-4461.,07-4461.
Citation556 F.3d 484
PartiesKevin EVERSON, Plaintiff-Appellee, v. Simon LEIS, Hamilton County Sheriff, and Albert Wittich, Jr., Deputy, Hamilton County Sheriff Department, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Michael G. Florez, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellants. Jennifer L. Branch, Gerhardstein & Branch, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael G. Florez, David Todd Stevenson, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellants. Jennifer L. Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch, Cincinnati, Ohio, for Appellee.

Before: SILER and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

OPINION

McKEAGUE, Circuit Judge.

This interlocutory appeal presents several interesting jurisdictional twists. The Plaintiff, Kevin Everson, suffers from epilepsy. He sued multiple defendants, including Hamilton County Sheriff Simon Leis and Deputy Sheriff Albert Wittich, Jr., for their purported unlawful treatment of him during and after a seizure he suffered in 2003. Sheriff Leis and Deputy Sheriff Wittich moved for summary judgment on various grounds, including qualified immunity. Rather than address the merits of the motion, the district court held it in abeyance and ordered that discovery be reopened. Defendants sought interlocutory appeal of that decision.

For the reasons set forth below, we conclude that we have jurisdiction over Defendants' qualified-immunity defenses. We further conclude that Defendants are immune from personal liability on several of Everson's federal claims.

I
A. Factual Background

Everson alleges the following facts in his complaint: On or about April 19, 2003 Everson was at the Northgate Mall in Hamilton County, Ohio. Deputy Sheriff Wittich and Deputy Sheriff John Doe (collectively, the "Deputies") were employed by the Hamilton County Sheriff's Office as deputies and by the Northgate Mall as security officers.

While at the mall, Everson suffered an epileptic seizure that required medical assistance. Although they were trained by the county on how to respond and to assist someone suffering an epileptic seizure, Everson contended that the Deputies physically agitated and attacked him. They knew that someone suffering a seizure can be violent, and that any violence was the direct result of the epilepsy. Everson told them that he was an epileptic and that their conduct was likely to cause him to suffer another seizure. Nevertheless, he asserted that the Deputies assaulted him, including hogtying him, and took him into custody. While in custody, Everson requested but was denied medical care. Everson was charged with assault and disorderly conduct, but the charges were later dismissed.

During his deposition, Everson provided further details regarding his seizures and the events at the mall. He can usually remember what happens before and after a seizure, but not what happens during a seizure. He frequently feels groggy and sometimes has headaches immediately after a seizure.

The seizure at Northgate Mall began when he was washing his hands in the restroom. He described his state of mind as "dazed" at the time. He exited the restroom and saw several individuals in uniform approach him. He could not say whether they were sheriff's deputies or mall security. He recalled that they asked him his name, and he responded by asking if he could sit down. The last thing he recalled prior to his seizure was being on the ground. After his seizure began to subside, he recalled finding himself in hand- and foot-restraints, lying face down on a cot.

He was then asked with whom he was at the mall, and he responded he was with his family. He was able to tell the individuals his name and where he was located. When asked whether he wanted to go to the hospital, he responded that his seizures did not require immediate medical attention. He was placed in a sheriff's squad car. He testified that his family did not see any of this.

Everson testified that while in the sheriff's squad car, he heard one deputy ask another, "What are we going to charge him with?" and the other responded, "I'll think something up and fax it down." He was eventually transported to the local detention center.

He testified that he told officials at the detention center that he had epilepsy and was taking medication for it. No one from the medical staff saw or treated him, however, while at the detention center. During his stay, he had several seizures. At least one guard knew of his seizures because he offered Everson a mat for the floor so that Everson would not hit his head if he had another seizure. He remained at the detention center from Saturday evening to Monday morning.

Everson did not recall telling a deputy at the mall that he could have another seizure nor did he recall whether he pushed the deputy. He had an epilepsy-identification tag on his keychain, but not on a chain around his neck or wrist.

For their part, Defendants assert that the following factual statements are undisputed: Everson threatened to swing at mall security staff and local EMS. He kicked and swung at individuals as they approached him. When Deputy Wittich attempted to retrieve his identification, Everson became violent and kicked the deputy. After being placed on the ground, Everson continued to kick and fight. When an EMS worker tried to obtain a blood sugar reading, Everson pushed the worker away.

B. Procedural Background

Everson sued Sheriff Leis, Deputy Sheriff Wittich, Deputy Sheriff John Doe, Northgate Mall, and John Doe Employee of Northgate Mall. He sued the government officials in both their individual and official capacities. He brought causes of actions under the Americans with Disabilities Act ("ADA"); 42 U.S.C. §§ 1983 and 1985 for illegal search, excessive force, unlawful arrest, and deliberate indifference to his serious medical needs; a separate equal protection claim under the Fourteenth Amendment; and an emotional distress claim under Ohio law.

The district court held a scheduling conference on July 22, 2005. The district court set a settlement conference for January 5, 2006; a discovery cut-off date of June 15, 2006; and a deadline for any motions for summary judgment of August 1, 2006. Shortly after the date for the settlement conference, Defendants deposed Everson. Everson's counsel failed to engage in any discovery. On August 1, 2006, Defendants filed a motion for summary judgment asserting, inter alia, claims of qualified immunity.1

Everson's counsel failed to file a response, even after receiving a two-month extension of time to do so. The district court issued a show-cause order; Everson's counsel asked to withdraw from the case for personal reasons. His request was granted, and he was subsequently suspended from the practice of law in Ohio. Everson obtained new counsel. Everson's new counsel filed a response opposing summary judgment and asking that discovery be reopened. The district court granted the request, ordered that discovery be reopened for ninety days, and ordered that Everson's counsel file a second response to the motion after the close of discovery.

Defendants sought interlocutory appeal of the district court's decision.

II
A. Jurisdiction

Title 28 U.S.C. § 1291 limits appellate jurisdiction to "final decisions of the district courts." Interlocutory appeals can be made under § 1291 in limited circumstances, namely when the district court's order "is effectively unreviewable on appeal from a final judgment," when it "conclusively determine[s] the disputed question," and when the question involves a claim "of right separable from, and collateral to, rights asserted in the action." Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (citations omitted). A decision on qualified immunity is separable from and collateral to any rights asserted in the action. Id. The issue on jurisdiction in this appeal boils down to whether the district court's order is effectively reviewable only on interlocutory appeal and whether the order conclusively determined the question of qualified immunity.

Defendants rely upon a series of cases holding that a district court cannot refuse to resolve a question of qualified immunity raised before discovery is closed, but must instead determine whether qualified immunity is proper or whether further discovery is necessary to resolve the question. In Skousen v. Brighton High School, the court on interlocutory appeal found that the district court had erred in first holding a summary-judgment motion in abeyance and then denying it without prejudice while the plaintiff finished discovery. 305 F.3d 520, 527 (6th Cir.2002). In doing so, the court reasoned,

Rather than dismiss the [summary judgment] motion because discovery was not complete, the district court was required to determine—prior to permitting further discovery—whether [plaintiff's] complaint alleged the violation of a constitutional right at all, and if so, whether that right was clearly established at the time of the alleged violation.

Id. Qualified immunity is intended not only to protect officials from civil damages, but just as importantly, to protect them from the rigors of litigation itself, including the potential disruptiveness of discovery. Id. at 526. By refusing to address qualified immunity when it was raised, the district court had undercut one of the primary rationales for such immunity—to save officials from unwarranted discovery. Id. at 527. The panels in Summers v. Leis, 368 F.3d 881 (6th Cir.2004), and Wallin v. Norman, 317 F.3d 558 (6th Cir.2003), came to the same conclusion under similar procedural backgrounds.

In arguing against jurisdiction, Everson relies upon this court's decision in Kimble v. Hoso, 439 F.3d 331 (6th Cir.2006). The court in Kimble concluded that it did not have jurisdiction on...

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