                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0746n.06

                                            No. 09-3385

                           UNITED STATES COURT OF APPEALS                                  FILED
                                FOR THE SIXTH CIRCUIT                                  Nov 20, 2009
                                                                                  LEONARD GREEN, Clerk

VAUGHN McCLINE,                                     )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
DAVID ROOSE,                                        )   NORTHERN DISTRICT OF OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )



BEFORE:        MERRITT, GIBBONS, and McKEAGUE, Circuit Judges


       MERRITT, Circuit Judge. The parties in this case have waived oral argument and

submitted the case on the briefs. It is an interlocutory appeal by the defendant Roose, a police

officer, who disagrees with the district court’s ruling denying his defense of qualified immunity. The

appeal is dismissed for the reason that this court lacks appellate jurisdiction over the interlocutory

appeal under Johnson v. Jones, 515 U.S. 304, 319-20 (1995), in which the Court held that “a

defendant, entitled to invoke a qualified immunity defense, 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.” The Court stated that “an interlocutory appeal concerning this

kind of issue in a sense makes unwise use of appellate court’s time, by forcing them to decide in the

context of a less developed record, an issue very similar to one they may well decide anyway later,
No. 09-3385
McCline v. Roose

on a record that will permit a better decision.” Id. at 317. Here in a comprehensive, well-reasoned

opinion, Judge Wells in section III B recites the disputed facts concerning the alleged use of

excessive force. 2009 WL 585844 (March 3, 2009). Those same disputed facts remain disputed on

appeal. The defendant Roose does not agree that the factual allegations of the plaintiff regarding the

use of excessive force should govern the question of qualified immunity on appeal or the question

of whether his conduct violates clearly established constitutional rights. He continues to insist on

the facts that the District Court concluded were in dispute.

       Thus, Roose’s case does not fall within the category of cases open to interlocutory appeal

based on qualified immunity.

       Accordingly, the appeal is dismissed for lack of appellate jurisdiction, which returns the case

to the District Court for further proceedings.




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