Thomas v. Cohen

Decision Date23 August 2002
Docket NumberNo. 01-5088.,01-5088.
Citation304 F.3d 563
PartiesNatasha THOMAS; Susan Gibbs; and Edwina Lewis, Plaintiffs-Appellees, v. Ann COHEN; Glenn Craig; James Embry; and Susan Fischer, in their individual capacities, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

David A. Friedman (argued and briefed), Fernandez, Friedman, Grossman & Kohn, Louisville, KY, for Appellees.

Paul V. Guagliardo (argued and briefed), Gregory S. Gowen (briefed), City of Louisville Department of Law, Louisville, KY, for Appellants.

Before: CLAY, GILMAN, and WALLACE, Circuit Judges.*

CLAY, J., announced the judgment of the court and delivered an opinion, in which GILMAN, J., concurred as to Part III-C. GILMAN, J. (pp. 582-83), delivered a separate opinion, in which WALLACE, J., concurred, which constitutes the opinion of the court on the issue addressed in Part III-B. WALLACE, J. (pp. 583-86), delivered a separate dissenting opinion as to Part III-C of Judge CLAY's opinion.


CLAY, Circuit Judge.

Defendants, Ann Cohen, Glenn Craig, James Embry and Susan Fischer, all officers with the Louisville, Kentucky, Police Department, appeal the district court's denial of their motion for summary judgment in this civil rights action filed by Plaintiffs, Natasha Thomas, Susan Gibbs, and Edwina Lewis, former residents of the Augusta House, a "transitional shelter" for women attempting to acclimate themselves to mainstream society. Plaintiffs filed suit seeking monetary damages under 42 U.S.C. § 1983 after Defendants evicted them from the Augusta House without a judicial order, allegedly in violation of Plaintiffs' Fourth and Fourteenth Amendment rights. Defendants claim that they are entitled to summary judgment under the doctrine of qualified immunity. For the reasons that follow, we AFFIRM the district court's judgment inasmuch as we hold that Plaintiffs' evictions were effectuated in violation of their Fourteenth Amendment rights. We reject Plaintiffs' arguments that the evictions violate Plaintiffs' Fourth Amendment rights, although Judge Clay would hold that Plaintiffs' Fourth Amendment rights were violated as well.


The Augusta House is located in Louisville and operated by Mission House, Inc. At all times relevant to this case, Plaintiffs were residents of the Augusta House, retained keys to the premises, and had full rights of entry. The Augusta House charged each resident a monthly fee of $140 to live there. Each resident of the Augusta House had her own bedroom, but shared the rest of the house in common. In the fall of 1998, a dispute arose between Plaintiffs and the Director of the Augusta House, Laura Zinious ("Zinious"), regarding Plaintiffs' alleged violations of the Augusta House rules. Zinious, who did not live on the premises, decided to evict Plaintiffs from the residence for these alleged violations. Meanwhile, Plaintiffs met with Linda Roberts, an attorney at the local Legal Aid Society, who informed them that, in her legal opinion, they were "tenants" of the Augusta House and could not be removed unless Zinious followed Kentucky's forcible detainer (statutory eviction) procedures.1 Roberts wrote a letter to Zinious stating this opinion. Plaintiffs also obtained a similar letter from the Louisville Tenants Association ("LTA"), a tenant advocacy group. Defendants have conceded for purposes of this appeal that Plaintiffs were tenants of the Augusta House.2

In the early evening of Monday, December 7, 1998, an Augusta House employee called the Louisville Police regarding a dispute with Plaintiffs. Officer Larry Cushman ("Cushman") responded to the call. When Cushman arrived at the scene, he was asked to remove Plaintiffs from the residence. No court order had been obtained authorizing an eviction. Based upon information supplied to him by Plaintiffs, as well as his own independent observations, Cushman declined to remove Plaintiffs from the residence. Cushman then advised the complainant to seek redress through proper legal channels by filing eviction papers.3 Officer Cushman is not a party to this action.

The following morning, Zinious called the police to have Plaintiffs removed. This time, the Defendant officers responded to the call. They had no knowledge of Officer Cushman's prior interaction with Plaintiffs. When the officers arrived at the residence, Zinious told them that Plaintiffs had violated the rules of the shelter by possessing alcohol and illegal drugs on the premises. She also told them that Plaintiffs threatened other Augusta House residents and that they refused to leave despite her orders to do so. Zinious then told the officers that eviction was "standard procedure" under the circumstances and asked them to remove Plaintiffs from the residence. She never produced a court order or other documentation authorizing the eviction.

Plaintiffs claim that the officers then entered their rooms and announced that they would have to leave the premises immediately. Plaintiffs informed the officers that they paid monthly rent to the Augusta House and showed or offered to show them the letter from the LTA. The officers disregarded Plaintiffs' attempts to provide explanations and documentation supporting their legal right to reside at the premises and proceeded to evict them without the benefit of a court order. At some point, one Plaintiff attempted to call attorney Roberts to tell her that the police were evicting Plaintiffs, but an officer ordered her to leave, laughed at her, and told her that she was homeless and did not have a lawyer. There was no physical confrontation during the eviction, and none of Plaintiffs' personal property was destroyed. However, Plaintiffs were not able to retrieve all of their belongings prior to the eviction. The officers do not claim that an emergency or exigent circumstances existed at the time to justify the eviction.

Plaintiffs subsequently filed suit against the officers, seeking monetary damages against them in their individual capacities under 42 U.S.C. § 1983 for violating Plaintiffs' Fourth Amendment right to be free from unreasonable seizures and their Fourteenth Amendment right not to be deprived of possessory interests in property without due process.4 Defendants filed a motion for summary judgment invoking the doctrine of qualified immunity. The district court denied this motion, and Defendants filed a timely appeal.


Before turning to the merits of the case, we must first address Plaintiffs' contention that this appeal should be dismissed because we lack jurisdiction to review the district court's denial of summary judgment. Defendants' appeal focuses solely on the district court's determination that they are not entitled to qualified immunity. Generally, denials of summary judgment on the basis of qualified immunity are "collateral orders" that are immediately appealable to the extent that they present issues of law separable from the merits yet potentially determinative of a claim. Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir.1999); Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir.1998). The Supreme Court has explained 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." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, while we "cannot review on interlocutory appeal a district court's determination that a genuine issue of fact exists for trial, ... we retain jurisdiction over the legal question of qualified immunity, i.e., whether a given set of facts violates clearly established law." Mattox, 183 F.3d at 519 (citations omitted). As a purely legal determination, the district court's denial of qualified immunity is subject to de novo review. Id.5


To state a claim under 42 U.S.C. § 1983, a plaintiff must prove that the defendant, while acting under color of state law, deprived her of a right secured by the Constitution or laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). "[A] government official's discretionary abuse of power which goes beyond the scope of his or her authority will usually have been performed under color of state law for purposes of section 1983 liability." Cassady v. Tackett, 938 F.2d 693, 700 (6th Cir.1991) (Engle, J., concurring in part and dissenting in part).

A. The Doctrine of Qualified Immunity

The doctrine of qualified immunity generally shields state actors from liability under § 1983 based on their discretionary acts. Anderson v. Creighton, 483 U.S. 635, 638-640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Daugherty v. Campbell, 935 F.2d 780, 783-84 (6th Cir.1991). As noted by this Court in Daugherty, "[q]ualified immunity entitles its possessor to `immunity from suit rather than a mere defense to liability.'" Id. at 783 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original)). Thus, government actors, including police officers, have the freedom to perform their official duties without fear that even a slight misstep will trigger their financial ruin. Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). However, government actors may lose this immunity when they violate clearly established constitutional rights of which a reasonable person should have known. Anderson, 483 U.S. at 638-39, 107 S.Ct. 3034; Harlow, 457 U.S. at 818, 102 S.Ct. 2727. "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action." Anderson, 483 U.S. at 639, 107 S.Ct. 3034 (quoting Harlow, 457 U.S....

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