Washington v. Starke
| Decision Date | 04 April 1986 |
| Court | U.S. Court of Appeals — Sixth Circuit |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Leon Washington, suing on his behalf and as Personal Representative of the Estate of Hardy James, Jr., Plaintiff-Appellant, v. Dean Starke; Ronald Kienzle; Michael Krugh; Keith Diamond; Thomas Yops; Maurice Crandall; Dale Easton; Benton Township; The City of Benton Harbor; Berrien County; Jack Drach; Forrest (Nick) Jewell; & Sam Watson, Defendants-Appellees. 86-1043 |
This matter is before the Court upon defendants' motion to dismiss and plaintiff's response in opposition thereto.
Plaintiff commenced action on his behalf and as personal representative of the estate of Hardy James, Jr. (decedent) on May 22, 1985, pursuant to 42 U.S.C. Secs. 1981, 1983, 1985, and 1986. He alleged that defendants violated decedent's rights under the fourth, fifth, sixth, and eighth amendments to the Constitution when they shot and killed him as he fled the scene of a burglary. Decedent was not armed. Plaintiff also filed pendent state claims alleging negligence, gross negligence and intentional tort.
The district court granted partial summary judgment for defendants, dismissed plaintiff's Secs. 1983 and 1986 claims with prejudice, and dismissed the pendent state claims against defendant Jewell. The remaining state claims were taken under advisement.
Defendants urge dismissal on the basis that the order appealed is neither appealable as a final judgment under Sec. 1291 nor as an interlocutory order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949). In opposition to dismissal plaintiff argues that the district court's order is appealable under the Cohen rule.
Upon consideration of all of the papers before the Court, it is concluded that the motion to dismiss must be granted. The Cohen rule makes appealable under 28 U.S.C. Sec. 1291 certain orders that do not fully and finally determine the controversy between the parties. An order is reviewable under Cohen if it involves: (1) conclusive resolution of an issue essentially unrelated to the merits of the main dispute; (2) an important and unsettled question of controlling law; and (3) a right incapable of vindication on appeal from the final judgment. Clearly, the first requirement of Cohen is satisfied in that the district court granted defendants' motion for summary judgment on plaintiff's Sec. 1983 claim based on the ground of qualified immunity. See Mitchell v. Forsyth, ---- U.S. ----, 105 S. Ct. 2806, 2816 (1985). The Sec. 1986 claims were dismissed because they were not timely filed. The second Cohen requirement is also satisfied. Plaintiff claims that this case involves a serious and unsettled question of whether Tennessee v. Garner, ---- U.S. ----, 105 S. Ct. 1694 (1985), should be applied retroactively. Garner holds that deadly force may not be used to prevent the escape of a felony suspect unless the police officer has probable cause to believe that the suspect poses a serious threat of harm to the officer or to others. 105 S. Ct. at 1703. The district...
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