Richard Kollin, Jr. v. City of Cleveland

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0096n.06
Case No. 13-3531 FILED
Feb 04, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
RICHARD KOLLIN, JR., Administrator of the )
Estate of Richard Kollin, Sr., Deceased, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
CITY OF CLEVELAND, et al., )
)
Defendants, )
) OPINION
and )
)
SERGEANT BRIAN CARNEY, )
)
Defendant-Appellant. )
BEFORE: COLE, GILMAN, and DONALD, Circuit Judges.
COLE, Circuit Judge. Richard Kollin, Sr.’s estate sued Sergeant Brian Carney after
Kollin died of complications from a stroke he suffered just before Carney arrested him. The
district court denied Carney summary judgment based on qualified immunity, finding that a
genuine dispute of material fact existed as to whether Carney was deliberately indifferent to
Kollin’s serious medical needs. Because the district court relied on facts not blatantly
contradicted by the record, and Carney’s sole legal argument relies on his own version of the
facts, we dismiss the appeal for lack of jurisdiction.
Case No. 13-3531
Kollin v. City of Cleveland, et al.
I. BACKGROUND
In this interlocutory appeal, where our jurisdiction is narrow, this court takes the facts as
alleged by the estate. See Estate of Carter v. City of Detroit, 408 F.3d 305, 307 (6th Cir. 2005).
Many of the following facts are disputed.
While driving home from work in October 2009, Richard Kollin, Sr. had a stroke and
rear-ended a taxi. A Cleveland Police Department traffic-crash report indicates that the accident
occurred at 8:02 p.m. and that Officers Ranell Thompson and Alcenia Small arrived at the scene
at 8:15 p.m. Thompson and Small later testified that by the time they arrived, Kollin had been
arrested, handcuffed, and placed in the back of Carney’s squad car. Carney arrested Kollin for
driving under the influence of alcohol or drugs. Carney claims that he arrested Kollin because
Kollin smelled of alcohol and failed three field sobriety tests, purportedly witnessed by
Thompson. Thompson testified that he did not witness any field sobriety tests and, despite being
in close proximity for thirty minutes, never smelled alcohol on Kollin.
A form referring Kollin for hospital service was filled out at 8:15 p.m. by someone
named “Alicea,” and it states that Kollin was referred because he “[could not] stand up” and was
“incoherent.” The estate argues that Carney, identified on the form by his badge number, made
the request from the accident scene to a jail employee named Alicea, who then filled out the
form. The form also indicates that the arrest occurred at 8:15 p.m.
Thompson and Small transferred Kollin from Carney’s car to theirs and took him to
central booking. They arrived at central booking sometime between 8:30 p.m. and 8:50 p.m.
Kollin walked from Carney’s car to Thompson and Small’s car and then to central booking, but
with some difficulty. A form filled out later that evening by a hospital physician states that “per
the police officer accompanying” Kollin to the hospital, Kollin “could walk up the stairs at the
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police station and was talking,” but by 8:30 p.m. “he began to look to the right and he had left
hemiparesis.”
Once at central booking, Small and Thompson brought Kollin directly to the booking
counter. The officer booking Kollin testified that he was placed in a wheelchair within five
minutes of arriving, and the officer remembered him years later because during the booking
process Kollin “never opened his mouth to speak a word.” That officer also took Kollin’s
picture, which shows Kollin sitting, gazing to the right with half-shut eyes and his left arm
dropped to the side. The estate argues that the photograph shows Kollin with a facial and left-
sided droop, which it claims is indicative of a stroke rather than intoxication. Carney and others
testified that Kollin’s appearance in the booking picture was the same as his appearance at the
accident scene. After being booked, Kollin was taken to the breathalyzer. Carney tried to give
Kollin the breathalyzer test at 9:15 p.m., but Kollin could not blow properly into the machine.
Around 9:43 p.m., an ambulance was called for Kollin. EMS reached Kollin at 9:57 p.m.
A report filled out by the responding EMS personnel states that the caller requested EMS
because Kollin was “unresponsive” and “incoherent,” that EMS found Kollin “sitting in
wheelchair,” and that Kollin’s “history of present illness/injury” was the “past 1 hr.” EMS
observed that Kollin had a “fixed gaze,” a “facial droop,” and that his left arm was completely
paralyzed. The report’s narrative states as follows:
Per [Cleveland Police Department]; pt was arrested for a DUI aprx 1 hour [prior
to arrival]. Then aprx 45 min [prior to arrival] pt started having worse slurred
speech than when arrested and started staring to his right side as in a rt side gaze
which he continued O/S and length of entire run. Pt was ambulatory upon arrest
and going into jail. Pt found sitting semiconscious and mental status improved at
a steady rate for the next 10 minutes. Upon arrival at ED pt was a&oxl with
slurred speech and facial droop. Pt initially a 0 on stroke scale then a 2 upon
arrival at ED. Pt has left arm paralysis at all times though both legs move
equally. . . .
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Thompson and Small later testified that they did not provide EMS with the information in the
narrative; Carney said he did not know whether he had provided the information to EMS.
At the hospital, blood tests confirmed that Kollin had no alcohol or illicit drugs in his
system. Kollin died in the hospital a month and a half later from complications resulting from
the stroke.
The estate and Kollin’s son brought various claims against Carney, the City of Cleveland,
the Cleveland Police Department, other police officers, and the medical facility and doctors who
provided Kollin with care. All defendants save Carney, the City of Cleveland, and the medical
facility were eventually dismissed. Carney and the City of Cleveland moved for summary
judgment, with Carney arguing that the doctrine of qualified immunity protects him from the
estate’s 42 U.S.C. § 1983 claims.
The district court rejected Carney’s argument. It found genuine disputes about facts
material to the estate’s claim that Carney was deliberately indifferent to Kollin’s serious medical
needs, a violation of Kollin’s Fourteenth Amendment right to due process. First, the court noted
that Carney did not dispute that Kollin had a sufficiently serious medical need. Second, it held
that a jury could reasonably find, based on the evidence considered in the light most favorable to
the estate, that Carney was deliberately indifferent because he was aware that Kollin needed
medical assistance ninety minutes before he requested an ambulance. Finally, the court held that
the Fourteenth Amendment’s prohibition of deliberate indifference to an arrestee’s serious
medical needs was clearly established when Carney acted.
Carney now appeals the district court’s denial of qualified immunity.
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II. ANALYSIS
Because 28 U.S.C. § 1291 grants us jurisdiction only over appeals from final district
court decisions, interlocutory appeals “are the exception, not the rule.” Johnson v. Jones, 515
U.S. 304, 309 (1995). Still, a district court’s denial of qualified immunity may be an appealable
final decision—but only “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). In this case, we lack jurisdiction to resolve anything other than pure
questions of law. Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir. 2009).
Disputes of fact may not be appealed by a defendant denied qualified immunity.
Harrison v. Ash, 539 F.3d 510, 517 (6th Cir. 2008). We may not review “which facts a party
may, or may not, be able to prove at trial,” Johnson, 515 U.S. at 313; “whether the evidence
could support a finding that particular conduct occurred,” Berryman v. Rieger, 150 F.3d 561, 563
(6th Cir. 1998); or a district court’s determination that the summary-judgment record raised a
genuine dispute of material fact (unless that determination is “blatantly and demonstrably false”),
Moldowan, 578 F.3d at 370–71; see also Johnson, 515 U.S. at 313. In contrast, we may review
the purely legal issue of “whether the plaintiff’s facts, taken at their best, show that the defendant
violated clearly established law.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir.
2013). Put simply: “a determination that a given set of facts violates clearly established law is
reviewable, while a determination that an issue of fact is ‘genuine’ is unreviewable.” See v. City
of Elyria, 502 F.3d 484, 490 (6th Cir. 2007).
Because we lack jurisdiction over factual issues, “a defendant must concede the most
favorable view of the facts to the plaintiff for purposes of the appeal,” Estate of Carter, 408 F.3d
at 309–10 (quoting Berryman, 150 F.3d at 563) (internal quotation marks omitted), and “limit his
argument to questions of law premised on facts taken in the light most favorable to the plaintiff,”
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Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538 (6th Cir. 2008). If a defendant does so, we
may address any remaining, purely legal arguments. See Williams v. Mehra, 186 F.3d 685, 689–
90 (6th Cir. 1999) (en banc). But if a defendant’s arguments rely on his own version of disputed
facts, we must dismiss the appeal for want of jurisdiction. McKenna v. City of Royal Oak, 469
F.3d 559, 561–62 (6th Cir. 2006). Moreover, mere conclusory statements that a defendant
construes the facts in the plaintiff’s favor cannot confer jurisdiction upon this court. Thompson
v. Grida, 656 F.3d 365, 368 (6th Cir. 2011); see also McKenna, 469 F.3d at 561.
In deciding the purely legal issues, we “can simply take, as given, the facts that the
district court assumed when it denied summary judgment for that (purely legal) reason.”
Johnson, 515 U.S. at 319; see also Sabo v. City of Mentor, 657 F.3d 332, 336 (6th Cir. 2011)
(dismissing appeal for lack of jurisdiction because defendant’s “only argument rests on a version
of the facts that differs from the version the district court assumed”). To the extent the district
court did not identify the particular facts it deemed adequately supported, this court may review
the record “to determine what facts the district court, in the light most favorable to the
nonmoving party, likely assumed.” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (quoting
Johnson, 515 U.S. at 319) (internal quotation marks omitted).
Carney spends most of his principal and reply briefs arguing against the estate’s version
of the facts. He disputes the time the accident occurred, the estate’s contention that Carney did
not have enough time to perform field sobriety tests and did not believe Kollin was intoxicated,
the order of events at central booking, and, most importantly, the time Carney knew Kollin
needed medical attention. Carney’s remaining argument is that the district court improperly
relied on certain evidence, including the form referring Kollin for hospital services, a printout
from the breathalyzer, and the booking photograph.
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We lack jurisdiction to consider these arguments. Case law makes clear that, in this type
of appeal, we may not review such factual issues. See, e.g., Johnson, 515 U.S. at 313; Berryman,
150 F.3d at 563 (remarking that this court may not review “whether the evidence could support a
finding that particular conduct occurred” (internal quotation marks omitted)); Estate of Carter,
408 F.3d at 309–10 (noting that a defendant’s argument that the district court “erroneously
considered inadmissible evidence” is an impermissible attempt to dispute facts on appeal).
Carney replies that he is not disputing the estate’s version of the facts “per se,” but then proceeds
to do just that. He cites no case law in support of his claim that we have jurisdiction over this
appeal.
Perhaps Carney’s best factual argument, which he never explicitly makes, is that the facts
relied on by the district court are “blatantly contradicted by the record.” See Scott v. Harris, 550
U.S. 372, 380 (2007) (holding that, on summary judgment, a court should not adopt a version of
the facts “blatantly contradicted by the record”); Moldowan, 578 F.3d at 370–71 (noting, in the
interlocutory appeal context, that this court may review a district court’s factual determination if
it is “blatantly and demonstrably false”); see also Romo v. Largen, 723 F.3d 670, 675 (6th Cir.
2013) (reasoning that, for interlocutory appeals, Scott is “limited as an exception for blatantly
contradicted facts”). This “one limited exception” to the requirement that a defendant concede
the plaintiff’s version of the facts is met only “where the evidence is so utterly discredited by the
record as to be rendered a visible fiction.” See Younes v. Pellerito, No. 13-1103, --- F.3d ----,
2014 WL 67343, at *4 (6th Cir. Jan. 9, 2014) (internal quotation marks omitted).
Here, the district court relied on the hospital referral form to deny qualified immunity,
stating that the form “tends to suggest that Sergeant Carney (listed on the form by his badge
number) noticed that Mr. Kollin needed medical assistance approximately an hour and a half
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before an ambulance was called.” The court also noted that conflicting deposition testimony
about whether Kollin was first taken to the booking counter rather than to the breathalyzer raised
a credibility issue to be resolved by the jury. Ultimately, the district court held that “there is a
genuine issue of material fact regarding the point at which [Carney] realized that Mr. Kollin
needed urgent medical assistance.”
These facts are not blatantly contradicted by the record. The referral form itself indicates
that it was filled out at 8:15 p.m., that Kollin was referred to a hospital because he “[could not]
stand up” and was “incoherent,” and that Carney arrested Kollin at 8:15 p.m. The EMS report
indicates that the ambulance was not called until 9:43 p.m. It is reasonable to infer from this
information, as the district court did, that Carney was aware at 8:15 p.m. that Kollin needed
medical assistance but waited until 9:43 p.m. to call for an ambulance. This is not the only
reasonable inference, but it is not an unreasonable one, and it is not blatantly contradicted by the
record. The jury ultimately may not believe the estate’s story, but because the district court did
not rely on any fact or inference “blatantly contradicted by the record”—because those facts are
not “so utterly discredited by the record as to be rendered a visible fiction”—the narrow
exception to our prohibition on reviewing factual issues does not apply.
Carney’s only hope for jurisdiction lies in his legal argument that the facts do not show
that Carney was deliberately indifferent to Kollin’s serious medical needs. But fatal to our
jurisdiction, Carney’s argument relies on his version of the facts. See McKenna, 469 F.3d at561–62. Carney claims that there is “no indication anywhere in the facts or evidence” that
Carney was or should have been aware that Kollin had suffered a stroke, in part because Kollin
smelled of alcohol, failed field sobriety tests witnessed by Thompson and Small, walked from
the car to central booking, raised his arms at central booking, and was not “unresponsive” during
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the breathalyzer test because he could walk. Carney also contends that he thought Kollin was
intoxicated, and that he immediately called for EMS once he realized Kollin needed medical
care. But the estate disputes Carney’s allegations with other record evidence, including
Thompson’s testimony that he never smelled alcohol on Kollin nor witnessed field sobriety tests,
the fact that blood tests confirmed Kollin did not have alcohol in his system, hospital and EMS
forms indicating that Kollin’s left arm and left side of his face had been paralyzed since
8:30 p.m. or 9:00 p.m., testimony that Kollin never spoke while being processed at central
booking, and the form referring Kollin to a hospital at 8:15 p.m. because he “[could not] stand
up” and was “incoherent.” And as established above, Carney may not challenge the district
court’s determination that “there is a genuine issue of material fact regarding the point at which
[Carney] realized that Mr. Kollin needed urgent medical assistance.” See See, 502 F.3d at 490(“[A] determination that an issue of fact is ‘genuine’ is unreviewable.”). Carney fails to premise
his legal argument on the view of the facts most favorable to the estate.
Because Carney’s sole legal argument relies on his own version of the facts, we may not
consider it. And though a purely legal argument might have been made using the estate’s
version of the facts, Carney did not make it here. See McKenna, 469 F.3d at 562 (holding that,
despite the possibility of legal arguments relying on facts favorable to the plaintiff, the court did
not have jurisdiction “because the officers have in fact made no arguments concerning the denial
of qualified immunity that do not rely on disputed facts”). Accordingly, we do not have
jurisdiction to consider this matter.
III. CONCLUSION
We dismiss the appeal for lack of jurisdiction.
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