Bernadette Rolen v. City of Cleveland , 657 F. App'x 353 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0415n.06
Case No. 15-3485
FILED
UNITED STATES COURT OF APPEALS Jul 25, 2016
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
BERNADETTE ROLEN, Administratrix of )
the Estate of Daniel Ficker; TIFFANY )
URBACH, )
) ON APPEAL FROM THE UNITED
Plaintiffs-Appellees, ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
v. ) OHIO
)
CITY OF CLEVELAND; MATTHEW )
CRASKA; DAVID MINDEK, ) OPINION
)
Defendants-Appellants.
BEFORE: KETHLEDGE, DONALD, and ROTH,* Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Plaintiffs-Appellees Bernadette Rolen
(as Administratrix of the Estate of Daniel Ficker) and Tiffany Urbach filed this lawsuit against
Defendants-Appellants the City of Cleveland (the “City”) and Cleveland police officers Matthew
Craska and David Mindek for alleged violations of state and federal rights based on a series of
events that ultimately led to the death of Daniel Ficker. The district court denied the defendants’
motions for summary judgment, reasoning that there were genuine issues of material fact present
for each claim and that the defendants were not entitled to qualified or statutory immunity. Both
defendants appeal, asserting that they are entitled to qualified immunity on the plaintiffs’
*
The Honorable Jane Roth, Circuit Judge for the United States Court of Appeals for the Third Circuit, sitting by
designation.
Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
42 U.S.C. § 1983 claims as well as statutory immunity on the plaintiffs’ state law claims. We
AFFIRM in part, DISMISS in part, and REMAND to the district court for further proceedings
consistent with this opinion.
I.
A. The Plaintiffs’ Version of the Facts
On the afternoon of July 3, 2011, Tiffany Urbach (“Urbach”), Daniel Ficker (“Ficker”),
and their children attended a Fourth of July party at the home of Urbach’s cousin, Kim Mindek
(“Kim”), in Cleveland, Ohio. Urbach and Ficker spoke with Kim about the layout of her house,
but Kim failed to mention that the upstairs was off limits to party guests. Urbach and Ficker
spent their time in the backyard with friends and family, except for the one time Ficker entered
the house to check on the kids. (R. 46-2, PageID #1317.) Eventually, Urbach, Ficker, and their
children left the Mindeks’ to attend another Fourth of July party at Urbach’s mother’s
home. Around 10:00 p.m., Urbach and Ficker said goodnight to their children, who were
spending the night with Urbach’s mother, and met a friend at a local bar for about an
hour. Urbach and Ficker had one or two alcoholic drinks at the first party, nothing to drink at the
second party, and two drinks at the bar.
Sometime after Urbach and Ficker left Kim’s party, Kim discovered that her wallet and
debit card were missing from her upstairs bedroom. She called her husband, David Mindek
(“Mindek”), an on-duty Cleveland police officer, sometime between 10:00 and 10:30 p.m. to
inform him of the apparent theft. Mindek left his shift and began driving home. On his way, he
called Matthew Craska (“Craska”), a fellow Cleveland police officer with whom he had a
personal relationship, and explained that there had been a party at his house and that some
personal items were missing.
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Craska, who was on-duty, proceeded to the Mindeks’ home. When he arrived, Kim told
him that she had explained to her guests that the upstairs of the house was off limits and that she
had only seen Ficker go upstairs. She also said that when she confronted Ficker about being
upstairs, he had explained that he was interested in the layout of the house.
Shortly thereafter, Mindek arrived at the house and discussed the situation with both his
wife and Craska. He informed Craska that Ficker had stolen from the family before and that he
was a convicted felon with a weapons charge. Based on this information, Craska asked his
police dispatcher to verify Ficker’s criminal history, but the search was unsuccessful.1 After this
preliminary investigation, Craska and Mindek decided to travel to Ficker and Urbach’s house in
Parma, a suburb of Cleveland, to question him about the theft. Craska’s superior at the
Cleveland Police Department granted him permission to travel to Parma and gather more
information for a report.
The officers arrived at Ficker’s house shortly before Urbach and Ficker pulled into the
driveway. Urbach observed Mindek standing on the lawn next to a tree and Craska standing by
his zone car2 on the street. Urbach parked in the driveway. As she and Ficker exited the car,
Urbach asked Mindek what he was doing at their house. Mindek began yelling at the couple
about the missing property, alleging that Ficker took it.
Craska remained silent as he stood by his zone car. Urbach and Ficker met at the back of
their car and began walking towards their house. Urbach asked Mindek to leave and said that
she and Ficker did not have any of the stolen property. The pair also told the officers that they
did not wish to speak to them. As Urbach reached the top step of her porch and attempted to
enter the side door, she felt Ficker jerk away from her, and she turned around to see Craska
1
Unbeknownst to him at the time, Craska had spelled “Ficker” wrong.
2
“Zone car” is slang for a police cruiser.
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forcing Ficker towards the zone car. While Craska shoved Ficker up against the trunk of the car,
Urbach walked over to Mindek, who was still standing on the lawn near her car, and asked him
to tell Craska to stop. Ficker began yelling, calling out to his neighbors for help and to observe
the officers’ conduct. Craska proceeded to search Ficker, finding a pocketknife, which he threw
to the side.
While Craska searched Ficker, Mindek demanded Urbach give him the keys to her car so
he could search it. Urbach threw her keys at him, told him to search it, and explained that he
would not find anything inside the car. Frustrated with the situation, Urbach called a friend who
was a Parma police officer and then her local police department’s non-emergency line to
ascertain whether Craska, as a Cleveland police officer, could question someone outside of his
jurisdiction. She paced back and forth between the fence and her car while she spoke on the
phone. Her view of Craska and Ficker was obstructed, and she did not see or hear the
subsequent interactions between the two.
Meanwhile, Craska attempted to shove Ficker into the zone car, while Mindek removed
Ficker’s hand from the car. Ficker resisted, grazing Craska’s chest with his elbow. In response,
Craska punched Ficker in the face and took him to the ground in an armbar.3 Craska informed
Ficker that he was under arrest for assaulting a police officer, and the pair began
wrestling. Ficker managed to lock his legs around Craska’s head, at which point Mindek
grabbed Ficker’s legs. Mindek also attempted to handcuff Ficker and eventually succeeded at
getting one handcuff on Ficker’s wrist. At some point, Craska choked Ficker. As the fight
continued, Ficker attempted to break free from Craska’s grasp and stand up a few
times. Eventually, he succeeded and moved several feet away from Craska. Without saying
3
This grappling technique often employed by law enforcement incapacitates a suspect by grabbing his arm and
using leverage to hyperextend the suspect’s elbow joint. See Jiggets ex rel. S.J. v. Long, 510 F. App’x 278, 281 (4th
Cir. 2013).
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anything, Craska then pulled out his Taser and deployed it in Ficker’s direction. Ficker
windmilled his arms, attempting to stop the prongs from hitting him. He subsequently removed
the one prong that hit his chest. Craska threw his Taser to the side and again moved towards
Ficker. The pair fell to the ground and continued wrestling each other. Ficker grabbed Craska’s
radio cord as the two struggled.
Mindek then warned Craska that he thought Ficker was trying to reach for Craska’s
gun. In response, both Craska and Mindek put their hands on the gun, in an attempt to keep it in
the holster. It was unclear if Craska knew whether Mindek or Ficker had their hand on the
gun. Craska then released the gun from the holster and held it behind his back. Ficker escaped
Craska’s hold and backed away. Craska moved the gun to his hip and fired a shot towards
Ficker, who was less than a foot away. Urbach heard the gunshot and turned around to find
Ficker on the ground, a few feet away from the side entrance of the house. She called 911, and
Ficker was pronounced dead later that night.
B. The Defendants’ Version of Events
On July 3, Urbach and Ficker attended a party at the Mindeks’ home. Kim Mindek told
her party guests, including Urbach and Ficker, that the upstairs of the house was off limits to
guests. At some point during the party, Kim saw Ficker coming down the stairs from the second
floor, and she confronted him. According to Kim, Ficker did not have a good excuse for being
upstairs and was very nervous. She explained that Ficker “was fidgeting around in his pockets . .
. as if he was trying to hide stuff.” Still, Kim did not think much of it at the time, as she did not
spend much time indoors during the party. She also was unsure if anyone else had been
upstairs.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
After Urbach and Ficker left the party, Kim discovered the theft. She called Mindek,
who was on duty. Mindek left his shift and drove home. While he was on his way, Mindek
called Craska, asking to file a report about the stolen personal items. Craska did not initially
answer, so Mindek left a message.
When Craska returned the call, Mindek explained that there had been a party at his house
and that personal items were missing. Craska departed for the Mindeks’ home, arriving before
Mindek. He pulled up to the curb and radioed his dispatcher for a report number to use as Kim
walked outside to meet him. He spoke with Kim, who relayed her encounter with Ficker.
Mindek then arrived at the house and informed Craska that Ficker had stolen from the
family before and that he had a previous conviction for a weapons charge. Armed with these
minimal facts, Craska excused himself and called his police dispatcher to verify Ficker’s
criminal history, but the dispatcher’s search was unsuccessful. Craska decided to drive to
Ficker’s house to continue his investigation. He asked Mindek if he wanted to accompany him
to speak with Ficker, even though he “didn’t have much information to go on.” R. 39-1, PageID
#393. Craska reasoned that Mindek could provide backup, identify Ficker, and identify the
missing items. Once Mindek agreed, Craska asked for and received permission from the
Cleveland Police Department to travel to Parma to continue his investigation.
Arriving in Parma before Urbach and Ficker, Craska and Mindek knocked on the front
and side doors, attempting to see if Urbach and Ficker were home. Shortly thereafter, Urbach
and Ficker pulled into the driveway. When they exited their car, Ficker told Craska he did not
want to answer any questions, but Craska responded that he needed to pat him down. Craska
then grabbed Ficker by the arm and escorted him to the zone car. During the pat down, Craska
discovered a pocketknife and tossed it towards Mindek, who was standing on the
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lawn. Simultaneously, Urbach told Mindek that he could search her car for the stolen
property. Craska heard her and concluded that he had consent to search her vehicle. Mindek
took the keys from Urbach and opened the car door and the glove box, but he stopped when he
heard Ficker start to yell.
During the pat down, Ficker began pushing off the car and started yelling to his neighbors
to “come on out.” Craska opened the door to the back of the zone car and asked Ficker to have a
seat. In response, Ficker braced himself in the doorframe of the car. Craska again asked Ficker
to have a seat, but Ficker said, “No, fuck you.” At some point, Mindek walked over to help
Craska handle Ficker. In an attempt to get Ficker to sit down in the car, Mindek removed
Ficker’s arm from the car door, and Craska leaned into him with his hip. Instead of sitting down,
Ficker struck Craska on his breastbone.
In response, Craska punched Ficker in the face and took him to the ground in an armbar.
As the pair began wrestling, Mindek grabbed Ficker’s legs to aid Craska in securing
Ficker. Ficker, meanwhile, attempted to break free from Craska’s grasp and stand up a few
times. Eventually, Ficker succeeded, throwing a few punches in Craska’s direction as he backed
away. Craska was still kneeling on the ground.
Craska then pulled out his Taser, aiming it at Ficker. He instructed Ficker to get on the
ground, but Ficker assumed a fighting stance, stating, “No, fuck you.” After several more
warnings, Craska deployed his Taser. Hit by the Taser’s prongs, Ficker staggered backward
several feet towards the sidewalk. He regained his balance and removed the prongs from his
chest. Craska again informed Ficker that he was under arrest and needed to get on the
ground. Ficker refused, stating, “Nope, fuck you. Let’s go.” Craska moved towards Ficker, and
the two began wrestling again. Both threw punches, and Ficker head-butted Craska on the side
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of his head. Mindek attempted to help by handcuffing Ficker, but he was unsuccessful. Craska
attempted to call for help on his radio; however, Ficker grabbed it and started whipping Craska
with the radio’s microphone. At some point, Ficker head-butted Craska again. Mindek was still
trying to grab Ficker’s hands to subdue him. Ficker, who was on his back, managed to lock his
legs around Craska’s head. Mindek then informed Craska that Ficker was reaching for Craska’s
gun. Craska reached down and felt the retention flap of his holster undone. He knocked Ficker’s
hand away from his holster and pushed himself out of Ficker’s leg lock. Mindek was also
reaching for the gun, attempting to push it down in the holster. Ficker attempted to choke Craska
with his hands. He then kicked Mindek, who fell over.
At some point, Craska’s glasses had fallen off, and he now struggled to see. Still on the
ground, Craska took the gun out of the holster and placed it behind his back. With one hand, he
shoved Ficker, who stood up and backed away from Craska. Craska began to lose
consciousness, but he aimed his gun at Ficker, explaining, “If you don’t quit going for my gun,
that’s it. You’re gonna die. You gotta stop. You’re under arrest. Knock it off.” Ficker once
again assumed a fighting stance and proceeded to throw a punch at Craska. Craska believed that
Ficker was approximately five feet away from him when he discharged his weapon, but he
admitted that physical evidence showed that Ficker was less than a foot away. When Mindek
heard the shot, he was attempting to stand up and turn around after being kicked. He did not see
Craska pull the trigger.
Ficker fell and landed on the walkway leading up to the side door. After hearing the shot,
Urbach went to his side. Craska called for help from his dispatcher, who contacted the Parma
police department. The Parma police arrived within a matter of minutes.
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C. Procedural History
Bernadette Rolen, in her capacity as Administratrix of the Estate of Daniel Ficker, and
Urbach brought suit against Craska, Mindek, and the City of Cleveland. They asserted (1) a civil
rights claim against Craska and Mindek under 42 U.S.C. § 1983, for violations of Ficker’s
Fourth and Fourteenth Amendment rights; (2) claims against the City for failure to train,
monitor, and supervise its officers and for failure to implement adequate policies; and (3) state
law claims for willful, wanton, and reckless conduct, assault and battery, false arrest, intentional
infliction of emotional distress on behalf of Urbach, wrongful death, and survivorship.
After the district court dismissed the state law claims against the City, the defendants all
separately filed motions for summary judgment, which the district court denied. The court found
that there was a genuine dispute of material fact surrounding the investigatory stop as well as the
attempted arrest of Ficker. The court also concluded that a reasonable jury could find in favor of
the plaintiffs’ on their deadly force claim against Craska, their failure to intervene claim against
Mindek, and their state law claims against both officers. The district court then denied both
qualified and statutory immunity for those claims.
II.
A. Jurisdiction
Ordinarily, we lack jurisdiction over an appeal of a denial of a motion for summary
judgment. Summers v. Leis, 368 F.3d 881, 886 (6th Cir. 2004). However, 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 28 U.S.C. § 1291 notwithstanding the absence of a final
judgment” from the district court. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). As such, “the
defendant[s] must be prepared to overlook any factual dispute and to concede an interpretation of
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the facts in the light most favorable to the plaintiff[s’] case.” Berryman v. Rieger, 150 F.3d 561,
562 (6th Cir. 1998). “Cases fitting that bill typically involve . . . disputes about the substance
and clarity of pre-existing law.” Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (citing Behrens v.
Pelletier, 516 U.S. 299, 313 (1996)).
Thus, we have jurisdiction over public officials’ claims to the extent that they claim that
their conduct did not violate a constitutional right and did not violate clearly established law.
See v. City of Elyria, 502 F.3d 484, 489-90 (6th Cir. 2007); see also Plumhoff v. Rickard, 134 S.
Ct. 2012, 2019 (2014); Diluzio v. Vill. of Yorkville, 796 F.3d 604, 610-11 (6th Cir. 2015)
(differentiating between an appellant’s reviewable and unreviewable challenges).
At the same time, we lack jurisdiction when the party appealing directly challenges “the
plaintiff’s allegations (and the district court’s acceptance) of ‘what [actually] occurred[ ] or why
an action was taken or omitted,’ who did it, or ‘nothing more than whether the evidence could
support a [jury’s] finding that particular conduct occurred.’” McDonald v. Flake, 814 F.3d 804,
813 (6th Cir. 2016) (alteration in original) (citations omitted). “Even if a defendant refuses to
concede all of the plaintiffs’ facts,” Zulock v. Shures, 441 F. App’x 294, 300 (6th Cir. 2010), and
even if “the district court couched its ruling in terms of factual disputes,” Dorsey v. Barber, 517
F.3d 389, 394 (6th Cir. 2008), we still have jurisdiction over the question of qualified immunity.
See Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (noting that
disregarding the factual disputes “obviat[es] the need to dismiss the entire appeal for lack of
jurisdiction”). In other words, we have jurisdiction to the extent that we can analyze the legal
question without relying on disputed facts. See Thompson v. Grida, 656 F.3d 365, 368 (6th Cir.
2011) (dismissing the interlocutory appeal because “[t]he officers’ arguments for qualified
immunity all hinge on acceptance of their version of the facts”).
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B. Standard of Review
We review interlocutory appeals of denials of summary judgment regarding immunity de
novo. Summers, 368 F.3d at 885. Motions for summary judgment are granted “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists
when, assuming the truth of the non-moving party’s evidence and construing all inferences from
that evidence in the light most favorable to the non-moving party, there is sufficient evidence for
a trier of fact to find for that party.” Murray-Ruhl v. Passinault, 246 F. App’x 338, 342 (6th Cir.
2007).
C. Qualified Immunity
“Qualified immunity is an affirmative defense that generally shields government officials
from suit under § 1983 for their discretionary actions.” Cummings v. City of Akron, 418 F.3d
676, 685 (6th Cir. 2005). “An official sued under § 1983 is entitled to qualified immunity unless
it is shown that the official violated a statutory or constitutional right that was ‘clearly
established’ at the time of the challenged conduct.” Plumhoff, 134 S. Ct. at 2023 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). Whether an officer is entitled to qualified
immunity requires a plaintiff to demonstrate “(1) that the official violated a statutory or
constitutional right, and (2) that right was clearly established.” al-Kidd, 563 U.S. at 735; see
Pearson v. Callahan, 555 U.S. 223, 232 (2009). “If no reasonably competent officer would have
taken the same action, then qualified immunity should be denied; however, ‘if officers of
reasonable competence could disagree on [the legality of the action], immunity should be
recognized.’” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007) (alteration in
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original). The plaintiffs have the burden of demonstrating that the defendants are not entitled to
qualified immunity. Dorsey, 517 F.3d at 395 (6th Cir. 2008).
III.
We address two preliminary issues at the outset. First, the plaintiffs claim that we lack
jurisdiction over this entire appeal due to the defendants’ failure to concede the facts in the light
most favorable to the plaintiffs, an argument the defendants fervently deny.4 Thus, we determine
whether we have jurisdiction over each issue in turn.
Second, the defendants argue that the district court failed to analyze Mindek’s conduct
separately from Craska’s during the initial investigatory stop. See Krutko v. Franklin Cnty.,
559 F. App’x 509, 511-12 (6th Cir. 2014) (concluding that where a district court does not
conduct a review of an officer’s individualized actions, remand for that consideration is
warranted). They suggest that the district court concluded that both Craska and Mindek were
without authority to conduct the investigatory stop, but the section title only relates to Craska.
Throughout its opinion, the district court acknowledged Mindek’s role during the initial
seizure—namely, that he put his hands on Ficker in an attempt to get him into the zone car. See,
e.g., R. 54, PageID #1664, 1669. Even if the section titles could have been clearer, 5 the district
court did not conclude, as a group, that Craska and Mindek were not entitled to qualified
immunity based on their collective actions. See Krutko, 559 F. App’x at 511. Instead, the
4
Despite this denial, the defendants oddly dedicate a portion of their Reply Brief to a section entitled, “Appellees
Grossly Misstate the Undisputed Facts.” Reply Br. 1. We have previously noted that merely stating that one has
conceded the facts is insufficient to establish jurisdiction. See Berryman, 150 F.3d at 564. “Once a defendant’s
argument drifts from the purely legal into the factual realm and begins contesting what really happened, our
jurisdiction ends and the case should proceed to trial.” Id. at 564-65. We remind defendants who wish to bring
interlocutory appeals based on qualified immunity that “a defendant will have a solid jurisdictional position if the
defendant claims that the plaintiff cannot show a violation of the clearly established law even assuming everything
alleged is true.” Id. at 564.
5
Indeed, if we were only to rely on section titles, then it appears the defendants would have us consider whether
they had probable cause to place Mindek under arrest. See Reply Br. 18 (“Defendants possessed probable cause to
place Mindek under arrest[.]”).
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language the defendants reference refers to the district court’s conclusion that both officers were
acting outside the scope of their employment. See R. 54, PageID #1661. The district court’s
ultimate conclusions refer to each officer separately, and the court engaged in an individualized
assessment of each officer’s conduct. See, e.g., id. (“For these reasons, the court finds that
Craska has failed to meet his burden on this argument.”). Thus, the district court did not err.
A. Investigatory Frisk
We first address whether we have jurisdiction over, and whether Craska is entitled to
qualified immunity as to, the plaintiffs’ claim that Craska violated Ficker’s Fourth Amendment
clearly established rights when he conducted an investigatory frisk of Ficker. Craska argues that
he had sufficient information to justify a Terry frisk based on (1) Ficker’s previous weapons
conviction and (2) his observation that Ficker was severely intoxicated and that Ficker was
becoming aggressive.6 Appellants’ Br. 25; Reply Br. 7. He also claims that he “recognized
approaching a person with questions about a theft could create a volatile situation.” Appellants’
Br. 26. The plaintiffs, on the other hand, claim that Ficker’s criminal background was
unverified. They further allege that although Ficker had been drinking, he was not severely
intoxicated. Lastly, they dispel any assertion that Ficker was violent or aggressive before Craska
grabbed him. In fact, they claim that both Ficker and Urbach told the officers that they did not
wish to speak to them and that the couple was attempting to enter their home when Craska
forcefully intervened.
6
Craska also attempts to rely on the fact that he found a pocketknife on Ficker during his search to justify the search
itself. Appellants’ Br. 28; Reply Br. 7. He further states, “Ficker turned out to be exactly the type of person law
officer’s fear when they are concerned enough about officer safety to perform a pat down.” Appellants’ Br. 28.
However, this post-hoc claim does not and should not affect whether an officer has, before the search, specific
articulable facts indicating a belief that an individual is presently armed and dangerous. See United States v.
Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011) (stating that “reasonable suspicion to make a stop cannot be justified
by facts that become apparent only after a seizure”).
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Law enforcement officers may interact with individuals during a consensual encounter
“without any objective level of suspicion.” United States v. Avery, 137 F.3d 343, 352 (6th Cir.
1997). When officers wish to engage in a non-consensual encounter, it rises to the level of an
investigative detention. Id. The Fourth Amendment allows an officer to conduct an
investigatory stop of an individual if they have reasonable suspicion of criminal activity. Terry
v. Ohio, 392 U.S. 1, 30-31 (1968). To conduct a protective frisk of an individual, an officer must
further believe “that the individual whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or others.” Id. at 24. Whether a Terry frisk is
constitutional depends on the validity of the initial Terry stop. Officers must have reasonable
suspicion to conduct a close-proximity investigation before they are entitled to conduct a
protective frisk. See Adams v. Williams, 407 U.S. 143, 146 (1972) (“So long as the officer is
entitled to make a forcible stop, and has reason to believe that the suspect is armed and
dangerous, he may conduct a weapons search limited in scope to [a] protective purpose.”); see
Wayne R. LaFave, 4 Search & Seizure § 9.6(a) (5th Ed.) (explaining that “a frisk for self-
protection cannot be undertaken when the officer has unnecessarily put himself in a position of
danger by not avoiding the individual in question”).
On appeal, Craska only argues that he is entitled to qualified immunity for frisking Ficker
and not for the stop itself.7 (Appellants’ Br. 25 (“Due to these two factors, Craska reasonably
determined that he should make a brief investigatory detention to pat Ficker down for officer
safety purposes.”). Because he has not set forth a basis for constitutional authority to conduct an
investigatory stop of Ficker, Craska cannot demonstrate that he was entitled to conduct a
7
Craska argues that, pursuant to United States v. Thomas, 77 F. App’x 862, 864 (6th Cir. 2003) (explaining that “a
seizure does not occur until the suspect is actually detained”), there was no seizure because Ficker was never
actually detained, in that he was not secured in the zone car. Appellants’ Br. 27-28. To the contrary, a Terry pat
down constitutes a “seizure” within the meaning of the Fourth Amendment. See Terry, 392 U.S. at 30-31.
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protective frisk. Since our analysis of this issue is not conditioned on any the disputed facts, we
have jurisdiction and deny Craska qualified immunity.
B. Arrest
We next address whether we have jurisdiction over, and whether Craska is entitled to
qualified immunity for, his attempted arrest of Ficker. The briefs suggest that the parties
disagree regarding if and when Ficker was arrested for Fourth Amendment purposes.8 Craska
asserts that he arrested Ficker after Ficker’s elbow hit him and that, up until that moment, he had
not used excessive force. Instead, he claims that prior to that moment, he “had used [the] bare
minimum levels of force” and “merely guid[ed] Ficker from Ficker’s car to [the] zone
car.” Appellants’ Br. 31.
On the other hand, the plaintiffs argue that the Terry stop and frisk ripened into an arrest
without probable cause. They also assert that Craska was more aggressive than he suggests:
“grabbed Ficker, dragged him backwards, and slammed him against the car.” Appellees’ Br. 33.
Whether the investigatory stop and frisk ripened into arrest depends on whether Craska’s
use of force “was reasonably related to the Terry stop’s purpose.” Feathers v. Aey, 319 F.3d
843, 852 n.2 (6th Cir. 2003) (“Although the Terry stop was invalid, we nonetheless must look to
it in determining the point at which the stop escalated into an arrest.”). We consider three factors
when determining whether a stop rises to the level of an arrest: “the length of the detention, the
manner in which it is conducted, and the degree of force used.” Smoak v. Hall, 460 F.3d 768,
781 (6th Cir. 2006).
8
Craska relies heavily on City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975), for the proposition that “in
the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist
arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of
his duties, whether or not the arrest is illegal under the circumstances.” However, Fraley was interpreting a City of
Columbus ordinance, not the limitations of the Fourth Amendment. Id. at 740.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
We cannot resolve whether or when this particular encounter escalated to the level of an
arrest because Craska has not conceded the plaintiffs’ version of the facts.9 While the plaintiffs
claim that Craska roughly grabbed Ficker and forcefully dragged him over to the zone car before
slamming him onto the car to search him, Craska claims that he “merely guid[ed]” Ficker and
used the “bare minimum” amount of force. These factual disputes directly implicate the
“manner in which [the stop] is conducted” as well as “the degree of force used.” Smoak,
460 F.3d at 781. Therefore, we lack jurisdiction over this issue.
C. Use of Deadly Force
Next, Craska argues that he is entitled to qualified immunity on the plaintiffs’ deadly
force claim. The plaintiffs reaffirm their contention that we lack jurisdiction over this issue
because Craska failed to concede their version of the facts. Indeed, Craska explicitly disputes
the plaintiffs’ version of the facts surrounding the fight between Ficker and Craska. In the Reply
Brief, Craska argues that the plaintiffs “ignore the four times Ficker attempted to kill Officer
Craska.” Reply Br. 2. Those four times include “Ficker twice attempting to choke Officer
Craska with his legs, once attempting to choke Craska with the cord of his portable radio, and
finally trying to get Craska’s gun from Craska’s holster.” Id.; see Appellants’ Br. 33 (asserting
the same facts). Craska also contends that he warned Ficker to cease resisting, stating “you’re
going to die.” Appellants’ Br. 36. Painting a David-and-Goliath scenario, he claims that he was
9
While the general rule is that we must accept the facts in the light most favorable to the plaintiffs, there is one
limited exception. Younes v. Pellerito, 739 F.3d 885, 889 (6th Cir. 2014). That exception is where the plaintiffs’
version of the facts can be “so utterly discredited by the record as to [render them] a ‘visible fiction.’” Id. Usually,
this applies to something akin to the strength of video evidence. See id. However, when the disputed facts are based
on testimony, this exception is usually not sufficient. See id.Craska argues that this exception applies to three of the plaintiffs’ assertions: (1) that Ficker was calling
out for help from his neighbors; (2) that Ficker was attempting to get into the house during the fight; and (3) that
Ficker and Urbach did not believe that Craska was an authorized police officer. Reply Br. 11. First, Urbach claims
that she heard Ficker yelling out to his neighbors for help. Second, Ficker’s neighbor saw him attempt to move
towards the house during the fight. Third, Urbach states she was actively attempting to determine whether Craska
and Mindek were authorized to act in Parma. Because there is at least some evidence in the record establishing
these facts, we decline to accept the defendants’ invitation to reject them as wholly unsupported by the record.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
physically exhausted from the fight, that he could not see because his glasses had been knocked
off, and that he was “on the edge of consciousness.” Id.The plaintiffs, on the other hand, argue that it was Craska who was the aggressor in this
situation, which began when Craska unnecessarily grabbed Ficker and dragged him to the zone
car to search him. They assert that after Craska unsuccessfully attempted to shove Ficker into
the zone car, Craska punched Ficker in the face. While the pair was wrestling, the plaintiffs
claim that Craska choked Ficker; that Ficker never threatened Craska by stating, “No, fuck
you,”; and that when the pair broke apart, it was Craska who went after Ficker and continued
fighting. Further, the plaintiffs argue that Craska survived the fight with only minor scrapes, as
compared to Ficker, who “sustained at least thirty separate injuries, including abrasions,
hemorrhages, and contusions all over his body.” Appellees’ Br. 26.
Claims of deadly force are governed by the Fourth Amendment’s reasonableness
standard. Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998). In Tennessee v.
Garner, 471 U.S. 1, 3 (1985), the Supreme Court forbade officers from using deadly force unless
“the officer has probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or to others.” When reviewing deadly force claims for
reasonableness, we pay “careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “The central legal question is
whether a reasonably well-trained officer in the defendant’s position would have known that
shooting the victim was unreasonable in the circumstances.” Sova, 142 F.3d at 903.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
The facts the parties disagree about directly implicate the considerations surrounding a
deadly force claim. Thus, we lack jurisdiction over this issue, as it is not our place to resolve
these factual disputes.10 See Sova, 142 F.3d at 903 (“Where, as here, the legal question of
qualified immunity turns upon which version of the facts one accepts, the jury, not the judge,
must determine liability.”).
III.
A. Investigatory Frisk
Mindek claims that he is entitled to qualified immunity for the initial seizure, the
grabbing of Ficker for the Terry frisk. Both parties seem to agree that Mindek removed Ficker’s
arm from the zone car. Thus, we have jurisdiction over this issue. Like Craska, Mindek cites to
Thomas for the proposition that his minimal use of force did not result in a detention, and
therefore, it does not implicate the Fourth Amendment, as there was never a “seizure.” 77 F.
App’x at 864.
Mindek’s argument is belied by case law. The Supreme Court has stated, “The word
‘seizure’ [in the Fourth Amendment] readily bears the meaning of a laying on of hands or
application of physical force to restrain movement, even when it is ultimately
unsuccessful.” California v. Hodari D., 499 U.S. 621, 626 (1991). Accordingly, Mindek’s
10
Craska argues that even if he were to concede these factual disputes, he is entitled to qualified immunity under
Mullenix v. Luna, 136 S. Ct. 305 (2015). He asserts that Mullenix suggests that when an officer is “faced with a
person who has clearly demonstrated intent and willingness to use deadly force against an officer or member of the
public, [the officer] is justified in using deadly force and qualified immunity shields the officer from any liability in
employing deadly force.” Reply Br. 14. However, Mullenix warns courts against defining clearly established law at
high levels of generality. 136 S. Ct. at 308. It stresses that we must look to “the specific context of the case.” Id.(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Accepting Craska’s invitation to apply Mullenix to this case
would fly in the face of that tenet. Mullenix analyzes whether an officer who “confronted a reportedly intoxicated
fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to
shoot police officers, and who was moments away from encountering an officer” was justified in using deadly force.
Id. at 309. These facts are not similar to the facts at issue here. Therefore, Mullenix is inapposite and does not
entitle Craska to qualified immunity.
Additionally, because we lack jurisdiction to review this issue, we need not address Craska’s claim that the district
court improperly relied on Mindek’s reaction to the situation to analyze Craska’s use of deadly force.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
touch could constitute a Fourth Amendment violation. See Florida v. Bostick, 501 U.S. 429, 434
(1991) (indicating that an encounter between police and citizens could lose its consensual nature
and constitutes a seizure when an officer, “by means of physical force . . . has in some way
restrained the liberty of a citizen” (quoting Terry, 392 U.S. at 19 n.16)).
Furthermore, Mindek does not argue that he had reasonable suspicion to engage in an
investigatory stop.11 Thus, a reasonable jury could conclude that his use of physical force to
assist in conducting a pat down of Ficker violated clearly established law. We accordingly deny
qualified immunity for this issue. See Adams, 407 U.S. at 146.
B. Failure to Prevent Use of Deadly Force
Mindek next argues that he is entitled to qualified immunity for the plaintiffs’ claim that
he failed to intervene to prevent the use of deadly force. He utilizes the same set of facts that
Craska asserts. See Reply. Br. 18 (“Appellant Mindek incorporates the facts as previously stated
in Appellants’ Merit Brief as well as previously stated in this Reply . . . .”). Relevantly, he
argues that the district court “completely ignored [his] unrefuted testimony.” Appellants’ Br. 41-
42. Mindek stated that “as Craska and Ficker were struggling on the ground, Mindek sought to
assist Craska. Mindek was kicked and fell backward. He landed several feet from Craska and
Ficker. As Mindek was getting up and turning back towards Craska and Ficker, Craska fired.”
Appellants’ Br. 42. Mindek argues that based on this series of events, he could not have possibly
attempted to stop Craska’s use of deadly force.
11
Mindek apparently convolutes Terry stops with Terry frisks. While he states that “[d]efendants possessed
reasonable suspicion to make an investigatory stop,” he seems to argue that both he and Craska were justified in
conducting a protective frisk and that Ficker was never actually detained for purposes of the Fourth Amendment.
Appellants’ Br. 35-37; Reply Br. 16-18. However, we review Terry stops and Terry frisks separately. United States
v. McMullin, 739 F.3d 943, 945-56 (6th Cir. 2014). Accordingly, we address the issue Mindek brought on appeal—
namely, whether his arm grab was justified under the Fourth Amendment’s protective frisk jurisprudence.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
Contrary to this statement, the plaintiffs point to an interview of a neighbor who
witnessed the fight between Craska, Mindek, and Ficker. The neighbor told Parma police that
when Craska shot Ficker, Mindek was “nowhere in the picture.” The neighbor also said that
while Mindek was involved in the fight at times, as he attempted to break up the leg hold Ficker
had on Craska’s head, Mindek otherwise simply watched Craska and Ficker wrestle.
We have held that police officers may be held liable for a failure to protect an individual
from the use of excessive force. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). “Generally
speaking, a police officer who fails to act to prevent the use of excessive force may be held liable
when (1) the officer observed or had reason to know that excessive force would be or was being
used, and (2) the officer had both the opportunity and the means to prevent the harm from
occurring.” Id. (citing Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
The disputed facts we have previously discussed directly implicate these considerations.
Whether Mindek was watching the fight from the sidelines, whether he was actively involved, or
whether he was incapacitated affects both whether he had knowledge that Craska was about to
use excessive force and whether he had the opportunity to intervene. Because Mindek does not
present us with a “neat abstract issue[] of law” to analyze, we lack jurisdiction over this
issue.12 Ortiz, 562 U.S. at 191.
IV.
Both Craska and Mindek claim that they are entitled to statutory immunity, pursuant to
O.R.C. § 2744, in response to the plaintiffs’ numerous state law claims: willful, wanton, and
reckless conduct; assault and battery; false arrest; intentional infliction of emotional distress on
12
Mindek also asserts that Ficker does not have a clearly established constitutional right “to have an officer
intervene to protect [him] from the consequences of [his] own conduct.” Appellants’ Br. 43; Reply Br. 20-21. Even
if this were a claim that the plaintiffs brought, it relies on the same disputed facts as the plaintiffs’ deadly force
claim. Thus, we lack the jurisdiction to address it.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
behalf of Urbach; wrongful death; and survivorship. Because statutory immunity is a complete
defense to suit in Ohio, we have jurisdiction over interlocutory appeals of denials of summary
judgment. Chesher v. Neyer, 477 F.3d 784, 794 (6th Cir. 2007). We review such appeals de
novo based on the summary judgment standard. Pritchard v. Hamilton Tp. Bd. of Trustees,
424 F. App’x 492, 508 (6th Cir. 2011). Thus, a party is entitled to summary judgment if the
record demonstrates “that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Oh. Civ. R. 56(C). “Ohio courts apply a
presumption of immunity.” Sabo v. City of Mentor, 657 F.3d 332, 337 (6th Cir. 2011) (citing
Cook v. City of Cincinnati, 658 N.E.2d 814, 821 (Ohio Ct. App. 1995)).
Under O.R.C. § 2744.03(A)(6), officers are entitled to immunity unless one of the
following exceptions applies:
(a) The employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith,
or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code.
When we review a claim for statutory immunity, we may not grant summary judgment “unless
reasonable minds can only conclude that (1) the employee did not act outside the scope of his
employment, or (2) the employee did not act with malicious purpose, in bad faith, or in a wanton
or reckless manner.” Long v. Hanging Rock, No. 09CA30, 2011 WL 4584930, *5 (Ohio Ct.
App. 2011). Furthermore, “[s]ummary judgment is appropriate only when the facts are clear and
fail to rise to the level of conduct that could be construed as malicious, in bad faith, or wanton
and reckless.” Id.- 21 -
Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
Craska and Mindek argue that the district court erred in concluding that they may have
been acting outside the scope of their employment13 and that their conduct may have been
wanton or reckless.
A. Scope of Employment
Both Mindek and Craska assert that the first exception does not apply, as they were
acting within the scope of their employment. The district court disagreed, concluding that the
officers, when in Parma, were acting outside of their jurisdiction. According to the district court,
Ohio law allows an officer to pursue a suspect outside of that officer’s jurisdiction under two
circumstances: (1) when an officer is in hot pursuit and the pursuit originated in that officer’s
jurisdiction, O.R.C. § 2935.03(D)(1)-(2); and (2) when an officer has an arrest warrant for an
individual located outside the officer’s jurisdiction, O.R.C. § 2935.02. The district court found
that neither of those situations applied to the case at bar. Lastly, the district court concluded that
because neither Craska nor Mindek actually observed Ficker commit a crime, they were unable
to arrest Ficker under Ohio law. See O.R.C. § 2935.04.
On appeal, the officers rely on O.R.C. § 2935.03(D) and State v. Dotson, 520 N.E.2d 240,
243 (Ohio Ct. App. 1987), for the proposition that they have authority to investigate crimes
outside their jurisdiction and that that authority implicitly carries with it the power to conduct an
investigatory stop. Section 2935.03(D) allows a police officer to pursue an individual outside the
bounds of his jurisdiction if three conditions are met:
13
Craska and Mindek make this argument in relation to their claims that they are entitled to federal qualified
immunity and adopt it in their argument for statutory immunity. However, whether Craska and Mindek were acting
within the scope of their employment has no bearing on whether they are entitled to qualified immunity for the
plaintiffs’ federal claims. See al-Kidd, 563 U.S. at 735 (explaining that qualified immunity is based on whether an
official violated a constitutional right and whether that right was clearly established); Tripp v. Dep’t of Def., 173 F.
Supp. 2d 58, 62-63 (D.D.C. 2001) (noting that scope of employment is a question for absolute immunity, not
qualified immunity). Thus, we address this issue here.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
(1) The pursuit takes place without unreasonable delay after the offense is
committed;
(2) The pursuit is initiated . . . within the limits of the territorial jurisdiction of the
peace officer; [and]
(3) The offense involved is a felony, a misdemeanor of the first [or second]
degree or a substantially equivalent municipal ordinance . . . or any offense for
which points are chargeable pursuant to section 4510.036 of the Revised Code.
Additionally, Craska and Mindek primarily rely on the following language from Dotson:
We are cited to no authority that city police cannot investigate criminal activity
occurring in areas outside the city limits. The drug traffic does not stop at town
boundaries and may have serious damaging effects upon the population of the
town. We know of no reason that a city or town cannot protect its citizens and
schools by initiating and conducting investigations in nearby areas. The only
problem would appear to be whether the city wished to finance such
investigations, a matter for city council and not for the courts.
520 N.E.2d at 243.
The officers’ decision to leave Cleveland and investigate the crime in Parma does not fall
within § 2935.03(D). Craska and Mindek did not view Ficker commit a crime, they were not in
pursuit of Ficker when they left Cleveland for Parma, and their interactions with Ficker did not
begin in Cleveland. See, e.g., State v. Black, 2004 WL 88857, *2-3 (Ohio Ct. App. Jan. 16,
2004) (holding that an officer who began pursuing a speeding car in his jurisdiction met the three
conditions of § 2935.03(D)).
Further, the officers’ reliance on Dotson is misplaced. Dotson stands for the proposition
that police in Ohio may investigate crimes outside of their jurisdictions; it does not bestow upon
police the power to stop, search, and otherwise physically confront citizens across the state.
520 N.E.2d at 243 (“Clearly here the city police had such authority [to investigate] and did not
attempt to, in any way, exercise a power to arrest or to execute a search warrant beyond the city
limits. Essentially they were witnesses.”). Dotson involved a confidential informant, not a
police officer, purchasing drugs on behalf of the police while in another jurisdiction. Id. at 242.
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
This investigation did not involve an officer’s pat down or arrest of a suspect. Thus, the facts of
this case are distinguishable from Dotson.
According to the plaintiffs’ version of the facts, Craska and Mindek blatantly ignored
Urbach and Ficker’s requests to leave them alone and to let them enter their home peacefully.
Instead, Craska and Mindek patted down Ficker, certainly exceeding the practical latitude
Dotson affords. Further, there is a dispute of material fact as to whether and when Craska
arrested Ficker. If Craska and Mindek exercised their power to arrest outside of their jurisdiction
(as in, the investigatory frisk ripened into an arrest) without witnessing Ficker commit a crime,
then a reasonable jury could conclude that they were not “investigating” in line with Dotson, and
they were therefore not acting within the scope of their employment. The district court properly
denied their motions for summary judgment on this basis.
B. Malicious Purpose, Bad Faith, or Wanton or Reckless Manner
The defendants also argue that the second exception to the immunity statute does not
apply, as their conduct was not with a malicious purpose, in bad faith, or wanton or reckless.
O.R.C. § 2744.03(A)(6)(b). In Burgess v. Fischer, this Court elaborated on how Ohio defines
malice, bad faith, and wanton or reckless behavior:
“Malice” is the willful and intentional design to do injury or the intention or
desire to harm another, usually seriously, through conduct which is unlawful or
unjustified. A defendant can be said to act in “bad faith” where it is shown that he
acted with a dishonest purpose, or conscious wrongdoing, or he breached a known
duty through some ulterior motive or ill will. Wanton misconduct is the failure to
exercise any care toward those to whom a duty of care is owed in circumstances
in which there is great probability that harm will result. And finally, “reckless
conduct” is the conscious disregard of or indifference to a known or obvious risk
of harm . . . that is unreasonable under the circumstances and is substantially
greater than negligent conduct.
735 F.3d 462, 479-80 (6th Cir. 2013) (citations omitted).
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
When the plaintiffs’ state-law claims rely on the same genuinely disputed material facts
as their federal claims, we generally decline to grant statutory immunity based on this exception.
See Gradisher v. City of Akron, 794 F.3d 574, 587-88 (6th Cir. 2015) (concluding that because
there was a genuine dispute of material fact with respect to the plaintiff’s claim of excessive
force, summary judgment was not appropriate on state law claims for assault and battery as well
as intentional infliction of emotional distress); Martin v. City of Broadview Heights, 712 F.3d
951, 963 (6th Cir. 2013) (denying statutory immunity for state law claims due to genuine issues
of material fact, including survivorship and wrongful death). As we have already demonstrated
that there are materially disputed facts at issue relating to the plaintiffs’ state law claims, the
district court properly denied summary judgment to the officers based on this prong of the state
immunity statute.
V.
The last issue we must address is the City’s interlocutory appeal of the district court’s
denial of its summary judgment motion. The City claims that we have pendant jurisdiction over
its appeal. We have pendant jurisdiction over issues that are “inextricably intertwined” with
qualified immunity considerations. Bultema v. Benzie Cnty., 146 F. App’x 28, 38-39 (6th Cir.
2005) (quoting Brennan v. Twp. of Northville, 78 F.3d 1152, 1157 (6th Cir. 1996)). However,
“[o]nce a [constitutional] violation is determined to have occurred, [] the question of municipal
liability turns not simply on the actions of the individual state actors, but rather on the separate
question of whether the violation may be attributed to a municipal policy or failure to
train.” Floyd v. City of Detroit, 518 F.3d 398, 411 (6th Cir. 2008). Such claims are “‘not
indisputably coterminous with, or subsumed in’ the question of the individual defendants’
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Case No. 15-3485, Rolen, et al. v. City of Cleveland, et al.
entitlement to qualified immunity.” Id. Thus, when a constitutional violation exists, this Court
lacks jurisdiction to hear the municipal liability claims. Id.We concluded that we either lacked jurisdiction over the constitutional issues that Craska
and Mindek appealed or that a reasonable jury could conclude that Craska and Mindek’s conduct
violated clearly established law, depriving them of qualified immunity. Thus, we lack
jurisdiction over the City’s appeal.
VI.
For the foregoing reasons, we AFFIRM in part, DISMISS in part, and REMAND for
further proceedings not inconsistent with this opinion.
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