Allan Mabbott , Ii v. United States District Court for the Eastern District of Michigan THOMAS BLAUVELT

1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0062n.06
Filed: January 26, 2005
No. 03-2372
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALLAN M ABBOTT , II,
Plaintiff-Appellee,
On Appeal from the
v. United States District Court for
the Eastern District of Michigan
THOMAS BLAUVELT AND WILLIAM TYREE ,
Defendants-Appellants.
______________________________/
BEFORE: KENNEDY, MARTIN, AND MOORE, Circuit Judges.
KENNEDY, Circuit Judge.
The Defendants appeal from the district court’s order denying their motion for summary
judgment, holding that the defendants were not entitled to qualified immunity because genuine
issues of material fact existed as to whether a reasonable officer would conclude that probable
cause existed to arrest the Plaintiff.
On the evening of April 11, 2002, Michael Bilak and Plaintiff Allan Mabbott roasted hot
dogs over a fire and drank beer in Bilak’s backyard until about 10:30 p.m. That evening,
Officers Blauvelt and Tyree were dispatched to Bilak’s residence on a complaint by a neighbor
of a loud party involving drinking and a fire. At this point in the background, the facts asserted
by the relevant parties diverge. We will first consider Officer Blauvelt’s version of the events.
Upon arrival at the house, Officer Blauvelt testified that he walked around to the rear of the

-- 1 of 3 --

2
residence where he saw Bilak running through the rear door stating, “hurry up, it’s the cops.”
Officer Blauvelt then ran around to the front door where, he contends, he saw Bilak and the
Plaintiff on the front lawn and ordered them to stop. In contradiction to his orders, Officer
Blauvelt asserts, they ran back into the house, and Mabbott closed and locked the door. Officer
Blauvelt contends that he ordered Mabbott to open the door, but that Mabbott refused.
Mabbott testified, on the other hand, that the first time he saw any police officers was
when Officer Blauvelt was knocking on the front door of the residence with his flashlight,
ordering Mabbott to open the door. Thus, he denies that he ever ran onto the front yard or was
ordered to stop. He does admit that he did refuse to open the door upon Officer Blauvelt’s
demand. Bilak also testified that he did not go into the front yard. Moreover, Officer Tyree,
who backed up Officer Blauvelt, testified that he did not observe the Plaintiff and Bilak exit the
front door.
The Officers’ and the Plaintiff’s stories re-merge at this point. Since the Plaintiff was
having car trouble, after the officers had left, he called for a tow-truck. Once the tow-truck
arrived, the Plaintiff went out of the house to meet it. At this point, the officers, who had been
waiting down the street, arrested him for “interfering with police duties” by failing to stop when
Officer Blauvelt allegedly had ordered him to do so. Thereafter, the Plaintiff filed this Section
1983 claim against those officers who arrested him, alleging that the officers were liable for
violating his Fourth Amendment right to be free from unlawful seizures since no reasonable
officer could conclude that he had probable cause to arrest the Plaintiff.
The sole basis upon which Officers Blauvelt and Tyree contend that they had probable
cause to arrest the Plaintiff is the fact that the Plaintiff allegedly refused to obey Officer

-- 2 of 3 --

3
Blauvelt’s order to stop when the Plaintiff was first in the front yard. The Plaintiff denies this
even occurred. As this is the Defendants’ motion for summary judgment, we take the Plaintiff’s
statements as true. Smith v. Henderson, 376 F.3d 529, 533 (6th Cir. 2004). Since the Defendants
do not argue that the facts alleged by the Plaintiff fail to support a claim of violation of clearly
established law (which is an appealable issue), but rather appear to merely argue that the
evidence could not support a finding that the Plaintiff did not run onto the front yard and was not
ordered to stop, the district court’s denial of summary judgment in this case was not appealable
since it was based on the determination that a genuine factual dispute existed as to the merits of
the Plaintiff’s constitutional claim. See Johnson v. Jones, 515 U.S. 304, 313 (1995) (holding that
the district court’s determination that the record raised a genuine issue of fact concerning
petitioners’ involvement in the alleged beating of respondent was not an immediately appealable
decision).
Accordingly, the appeal is dismissed for want of jurisdiction.

-- 3 of 3 --