Selena Reed v. Arneil Rose, City of Cleveland

NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0417n.06
Filed: July 14, 2008
No. 07-3274
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SELENA REED,
Plaintiff-Appellee,
v.
ARNEIL ROSE, CITY OF CLEVELAND,
Defendants,
and
TIMOTHY CLARK,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
OPINION
Before: KENNEDY, GILMAN, and GIBBONS, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. This action, brought under 42 U.S.C. § 1983
and Ohio state law, arises from the fatal shooting of Brandon Robinson by one of two police officers
employed by the City of Cleveland. Selena Reed, Robinson’s mother and the administratrix of his
estate, claims that the officer who shot and killed Robinson used excessive force and thereby violated
his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. Robinson was shot
while attempting to flee after he and his friend Courtney Mays were confronted by Officers Timothy
Clark and Arneil Rose.

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Officer Clark claims that he is entitled to qualified immunity for his actions, but the district
court concluded that genuine issues of material fact precluded the grant of summary judgment in his
favor. On appeal, Clark contends that the district court erred in denying summary judgment on his
qualified-immunity claim. He also renews his argument that he was never properly served with a
federal-court summons, thereby making the district court’s exercise of personal jurisdiction over him
improper. For the reasons set forth below, we DISMISS this interlocutory appeal for lack of
jurisdiction.
I. BACKGROUND
The parties are of course familiar with the facts underlying the present case. We therefore
include a brief summary only insofar as is necessary to provide background for the analysis set forth
in Part II. below.
A. Factual background
On the afternoon of January 18, 2004, Mays and Robinson picked up food at a Burger King
restaurant. Mays then drove his car, with Robinson in the passenger seat, to 3598 East 151st Street
in Cleveland, where the two men sat in the parked car while they ate their food. In his deposition,
Mays stated that Robinson also attempted to hook up a portable television to the cigarette lighter so
that they could watch a movie.
Meanwhile, Officers Clark and Rose received a radio dispatch that reported drug activity
taking place in a car on 151st Street. The call gave a specific address and a description of the vehicle
in question. Clark and Rose drove to 151st Street and, upon their arrival, parked behind a car that

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fit the description that they had been given by the dispatcher. According to Clark’s deposition
testimony, the officers saw two men inside the car. The driver, later identified as Mays, apparently
matched the dispatcher’s description of one of the individuals reportedly engaging in the drug
activity.
Officer Clark then made a call to the dispatcher to run a check on the vehicle’s license-plate
number. Before receiving any information back, however, the officers saw “furtive movements”
inside the suspect car and told the dispatcher to “hold” the information. Officer Rose described the
suspicious movements as “people turning back, looking at you, then reaching down in a downward
motion continuously.” Without discussing how to proceed, both officers exited the patrol car with
their guns drawn and approached the car in front of them.
Officer Clark went to the passenger side of the vehicle and Officer Rose went to the driver’s
side. Rose ordered Mays to exit the car, at which point Rose immediately handcuffed him. Clark
then ordered Robinson out and took him toward the back of the car. Before Clark was able to
handcuff Robinson, however, Robinson took off running down the street. Clark chased Robinson
and tackled him to the ground. Both parties agree that a struggle then ensued.
Testimony offered by four witnesses—Mays, Officers Clark and Rose, and Bessie Mathis,
a resident of a house on 151st Street near where the struggle took place—provides varying,
conflicting accounts of what happened during this struggle. For the purposes of our analysis, the
most important discrepancies exist between the testimony of Clark and that of Mathis.
Officer Clark, for his part, stated that Robinson managed to get on top of him and punched
him in the face. He also testified that, during the struggle, Robinson reached for the gun in Clark’s

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holster. As they wrestled over the gun, Clark acknowledged that he fired a single gunshot at
Robinson. The latter was killed by a single bullet to the chest. Clark claimed that he shot Robinson
because he feared for his life and the lives of others.
On the other hand, Mathis testified that she saw “every bit” of the struggle between Officer
Clark and Robinson and the eventual shooting of Robinson. She claimed that Robinson was never
on top of Clark and that she did not see Robinson punch Clark. Furthermore, she stated that
Robinson neither wrestled with Clark, tried to get away, nor reached for Clark’s gun. Mathis instead
said that she saw Robinson put his hands up in the air when Clark tackled him onto his back, and that
Clark had his knee on Robinson. In contrast to Clark’s own admission and Officer Rose’s testimony,
Mathis said that Rose (who ran over to the two men after ensuring that Mays’s handcuffs were
secure), and not Clark, actually shot Robinson. Mathis explained that her basis for saying that Rose
fired the fatal shot is the way Rose handled his gun immediately after she saw Robinson slump to
the ground.
B. Procedural background
In March of 2004, Reed filed this action in Ohio state court against Officer Clark, Officer
Rose, and the City of Cleveland. The City promptly filed a petition to remove the case to federal
court, to which both officers consented. In October of 2005, all three defendants filed a motion for
summary judgment. Clark conceded that he had shot and killed Robinson but claimed that he was
entitled to qualified immunity for his actions.
The district court granted the motion as to the City but denied the motion as to Clark and
Rose. Adopting the Report and Recommendation issued by the magistrate judge to whom the case

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had been referred, the court found that genuine issues of material fact existed as to (1) which officer
shot Robinson, and (2) whether the officer who shot Robinson reasonably believed that the latter
posed a threat to the officer or to the public. The court therefore concluded that genuine issues of
material fact precluded granting qualified immunity to Clark on a motion for summary judgment.
Clark timely appealed.
II. ANALYSIS
Qualified immunity protects government officials from liability for civil damages stemming
from their performance of discretionary functions so long as “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.” Sova
v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). A district court’s grant of summary judgment on a qualified-immunity claim
constitutes an appealable final decision under 28 U.S.C. § 1291. See, e.g., Dunigan v. Noble, 390
F.3d 486, 488 (6th Cir. 2004) (exercising appellate jurisdiction, pursuant to § 1291, over the district
court’s grant of summary judgment based on qualified immunity). The denial of summary judgment
on such a claim, however, is subject to challenge as a final decision within the meaning of § 1291
only to the extent that it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 529 n.9, 530
(1985) (emphasizing that “the appealable issue is a purely legal one: whether the facts alleged (by
the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established
law”); see also Johnson v. Jones, 515 U.S. 304, 319-20 (1995) (holding that a defendant raising a
claim of qualified immunity “may not appeal a district court’s summary judgment order insofar as
that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial”).

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In other words, “for appellate jurisdiction to lie over an interlocutory appeal, a defendant
seeking qualified immunity must be willing to concede the facts as alleged by the plaintiff and
discuss only the legal issues raised by the case.” Sheets v. Mullins, 287 F.3d 581, 585 (6th Cir.
2002). To the extent that the arguments raised by a defendant regarding qualified immunity “rely
exclusively on a disputed version of the facts, this court does not have jurisdiction to consider [the]
appeal.” McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir. 2006).
Reed argues that we do not have jurisdiction over Officer Clark’s appeal because Clark is
disputing the district court’s factual findings rather than its legal conclusions. We agree. Despite
Clark’s repeated attempts to characterize the qualified-immunity claim before us as a purely legal
question, his arguments “in fact rely on [his] own disputed version of the facts, not the facts as
alleged by [Reed].” See id. Clark’s claim (broken down into several different arguments) is
essentially that Mathis’s testimony must be discredited in its entirety because it conflicts with other
evidence and is therefore totally unreliable. In particular, he contends that (1) Mathis’s belief that
Officer Rose fired the fatal shot is refuted by the coroner’s report showing that the shot was fired
within a quarter inch of Robinson’s chest, and (2) Mathis’s testimony that she did not see Robinson
grab Clark’s gun “does not mean that it did not, in fact, happen.”
Officer Clark’s first argument fails because, even assuming that Mathis’s recollection is
contradicted by the coroner’s report and that Clark did indeed shoot Robinson (a fact that Clark
himself admits), such an assumption would neither require nor permit us to ignore the entirety of
Mathis’s testimony. A finding that Clark shot Robinson would also do nothing to establish the more
central question of whether that use of force was objectively reasonable under the circumstances,

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which is the inquiry that we would undertake if Clark were willing to view the facts in the light most
favorable to Reed. See, e.g., Tennessee v. Garner, 471 U.S. 1, 11-12 (1985) (holding that courts
must evaluate the constitutionality of an officer’s use of deadly force to apprehend a fleeing suspect
based on the reasonableness standard contained in the Fourth Amendment).
Officer Clark’s reading of Mathis’s testimony (i.e., that she simply did not see what
happened) ignores Mathis’s own repeated statements that she watched “every bit” of the incident and
that Robinson immediately raised his hands in the air after being tackled by Clark. This conflicting
interpretation of the record constitutes precisely the type of impermissible resolution of a disputed
fact that is inappropriate in evaluating a claim of qualified immunity, and that, in the context of a
denial of such a claim, deprives us of jurisdiction to review Clark’s claim in the first instance.
Indeed, our independent review of the record demonstrates that the district court properly
found that genuine issues of material fact preclude the conclusion that Officer Clark is entitled to
qualified immunity as a matter of law. Mathis’s eyewitness testimony calls into question not only
who shot Robinson but, more importantly, whether the force used was reasonable under the
circumstances. Without being able to resolve the disputed factual question of whether Robinson
actually attempted to gain control of Clark’s gun, we cannot conclude that the use of force was
reasonable as a matter of law. See Garner, 471 U.S. at 11 (explaining that an officer may reasonably
use deadly force to prevent the escape of a suspect only if the officer “has probable cause to believe
that the suspect poses a threat of serious physical harm, either to the officer or to others”).
Clark’s argument that we can decide his claim as a matter of law requires us to ignore or
discount the testimony in the record that contradicts his own factual account. This we cannot do.

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See Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998) (“[I]n order for . . . an interlocutory
appeal based on qualified immunity to lie, the defendant must be prepared to overlook any factual
dispute and to concede an interpretation of the facts in the light most favorable to the plaintiff’s
case.”).
And because we lack jurisdiction to consider the qualified-immunity claim raised by Officer
Clark, we necessarily lack jurisdiction to consider his pendent claim that he was not properly served
with a summons. See McKenna, 469 F.3d at 562-63 (explaining that pendent appellate jurisdiction
exists over issues that are otherwise not reviewable in an interlocutory appeal but that are
“inextricably intertwined with matters over which the appellate court properly and independently has
jurisdiction,” and concluding that the court lacked jurisdiction to consider the officers’ pendent claim
in the absence of jurisdiction over the qualified-immunity issue (internal quotation marks omitted)).
We therefore decline to address the merits of this pendent claim.
III. CONCLUSION
For all of the reasons set forth above, we DISMISS this interlocutory appeal for lack of
jurisdiction.

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