Gerald W. Marshall v. BRUCE KIRBY, Lieutenant

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD W. MARSHALL,
Plaintiff - Appellee,
v.
BRUCE KIRBY, Lieutenant,
Defendant - Appellant,
and
MICHAEL POEHLMAN, Chief of Police;
et al.,
Defendants.
No. 09-15460
D.C. No. 3:07-cv-00222-RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert A. McQuaid, Magistrate Judge, Presiding
Submitted April 14, 2010 **
San Francisco, California
FILED
APR 23 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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*** The Honorable William Stafford, United States District Judge for the
Northern District of Florida, sitting by designation.
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Before: KLEINFELD and THOMAS, Circuit Judges, and STAFFORD, Senior
District Judge. ***
The plaintiff, Gerald Marshall, sued the defendant, Lieutenant Bruce Kirby,
alleging unlawful detention, use of excessive force, and arrest without probable
cause, all in violation of the Fourth Amendment and 42 U.S.C. § 1983. Kirby
appeals from the trial court’s order denying his Rule 50(a) motion for judgment as
a matter of law on qualified immunity grounds. The motion was made before the
jury announced that it was unable to reach a unanimous verdict. The case thus
comes to us in the posture of an interlocutory appeal. We dismiss the appeal and
remand for further proceedings.
Our jurisdiction, or scope of review, in an appeal of a district court’s denial
of an official’s motion for qualified immunity is limited to questions of law and
does not extend to matters of fact or questions of evidence sufficiency. In Johnson
v. Jones, 515 U.S. 304, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995), the Supreme
Court held that “a defendant, entitled to invoke a qualified immunity defense, may
not appeal a district court’s . . . order insofar as that order determines whether or
not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-20.
The Court later clarified Johnson by explaining that, “if what is at issue in the

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sufficiency determination is nothing more than whether the evidence could support
a finding that particular conduct occurred, the question decided is not truly
‘separable’ from the plaintiff's claim, and hence there is no ‘final decision’ under
Cohen and Mitchell.” Behrens v. Pelletier, 516 U.S. 299, 313, 116 S. Ct. 834, 133
L. Ed. 2d 773 (1996).
Here, the trial court determined that multiple disputed issues of material fact
precluded entry of judgment in Kirby’s favor on all claims. On appeal, Kirby
continues to insist on facts that the trial judge concluded were in dispute, making
little, if any, attempt to demonstrate that he is entitled to qualified immunity even if
the evidence, and all reasonable inferences therefrom, are construed in the light
most favorable to Marshall.
Because we find that this case does not fall within the category of cases open
to interlocutory appeal based on qualified immunity, the appeal is DISMISSED.
The case shall be returned to the trial court for further proceedings .

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