                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0163n.06

                                            No. 09-4089                                FILED
                                                                                    Mar 21, 2011
                           UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

ANTHONY B. WHEELER,                                )
                                                   )
       Plaintiff - Appellee,                       )       ON APPEAL FROM THE
                                                   )       UNITED STATES DISTRICT
v.                                                 )       COURT FOR THE NORTHERN
                                                   )       DISTRICT OF OHIO
CITY OF CLEVELAND; DANNY                           )
ELLIS; CHRISTOPHER LANE,                           )
                                                   )
      Defendants - Appellants.                     )
______________________________                     )


Before: BATCHELDER, Chief Judge; BOGGS and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Defendants-Appellants City of Cleveland, Danny

Ellis, and Christopher Lane (“Defendants”) appeal the district court’s denial of their motions for

summary judgment, including Ellis and Lane’s requests for qualified immunity. We AFFIRM the

district court’s denial of qualified immunity to Ellis and Lane and further hold that we lack

jurisdiction over the other issues raised in this interlocutory appeal.

       Defendants Danny Ellis and Christopher Lane are officers with the Cleveland Police

Department. Between 10:00 and 11:00 p.m. on April 2, 2007, Officers Ellis and Lane arrested

Plaintiff-Appellee Anthony Wheeler while responding to a report that a group of men were

threatening a woman in retaliation for her earlier report to police that her daughter had been

threatened by an armed man. Wheeler states that he was walking in the neighborhood while talking

on his cell phone, and that Lane approached him with gun drawn and ordered him to freeze. Wheeler
No. 09-4089
Wheeler v. City of Cleveland

dropped his cell phone and dropped to all fours on the ground. It is undisputed that he did not

attempt to flee, resist arrest, or threaten the officers. Wheeler alleges that Lane put his knee in

Wheeler’s back, hit him on the back of the head, and struck him in the groin, ribs, and back

approximately seven times. Officer Ellis then arrived in a police vehicle and kicked Wheeler in the

ribs. Ellis and Lane took Wheeler to jail, but Wheeler was not booked until the next morning. He

was sent to the hospital on April 3, 2007 for treatment of injuries sustained during the arrest, and

then returned to jail. No charges were ever filed against him, and he was released at 10:00 a.m. on

April 4, 2007, approximately 35 hours after his arrest. Because this appeal comes to us on a motion

for summary judgment, we construe the facts in a light most favorable to Wheeler. See Harrison v.

Ash, 539 F.3d 510, 516 (6th Cir. 2008).

       Wheeler filed suit under 42 U.S.C. § 1983 alleging, inter alia, that Ellis and Lane used

excessive force during the course of their arrest of Wheeler, in violation of the Fourth and Fourteenth

Amendments, and that the City of Cleveland unlawfully detained Wheeler for approximately 35

hours without filing charges or bringing him before a magistrate in violation of the Fourth and

Fourteenth Amendments. Wheeler also alleges that Ellis and Lane used excessive force, in violation

of state law. Defendants filed a motion for summary judgment, which the district court granted in

part and denied in part. Relevant to this appeal, the court denied summary judgment to Ellis and

Lane on the excessive-force claim and found that they are not entitled to qualified immunity because

a genuine issue of material fact exists as to whether the officers violated Wheeler’s clearly

established right to be free from excessive force during the course of an arrest. The court denied



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Wheeler v. City of Cleveland

summary judgment to the City of Cleveland, finding genuine issues of material fact regarding the

unlawful detention claim.

       A district court’s denial of summary judgment is ordinarily not immediately appealable

because it is not a final order. See Harrison, 539 F.3d at 516; 28 U.S.C. § 1291. However, an order

denying qualified immunity is immediately appealable pursuant to the collateral-order doctrine.

Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985); Harrison, 539 F.3d at 516. Our jurisdiction over

appeals of orders denying qualified immunity is “narrow,” and we “may exercise jurisdiction ‘only

to the extent that a summary judgment order denies qualified immunity based on a pure issue of

law.’” Harrison, 539 F.3d at 517 (quoting Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir.

2006)). “Accordingly, a defendant is required to limit her argument to questions of law premised

on facts taken in the light most favorable to the plaintiff.” Meals v. City of Memphis, 493 F.3d 720,

726-27 (6th Cir. 2007). “Where qualified immunity is denied due to a lingering question of whether

the evidence supports a finding that particular offensive conduct occurred, we would lack appellate

jurisdiction . . . .” Id. at 727. Where jurisdiction is proper, we review the district court’s denial of

qualified immunity de novo. Id. at 728.

       Officers Ellis and Lane argue that, even when the evidence is viewed in the light most

favorable to Wheeler, the district court erred in its legal analysis of the qualified immunity issue.

Specifically, the officers argue that the court misapplied the standard for judging violations of the

Fourth Amendment’s prohibition on excessive force, as set out in Graham v. Connor, 490 U.S. 386

(1989), by failing to judge the reasonableness of the officers’ force “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” id. at 396. Even

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Wheeler v. City of Cleveland

assuming, arguendo, that the court somehow erred in its analysis, our de novo review allows us to

conclude that the denial of qualified immunity was proper. When evaluating whether an officer is

entitled to qualified immunity, we must determine: 1) whether the plaintiff’s allegations make out

a violation of a constitutional right; and 2) whether that right was clearly established at the time of

the alleged violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). We may address these questions

out of sequence. Pearson v. Callahan, 129 S. Ct. 808, 821 (2009).

       The Fourth Amendment protects against the use of excessive force “in the context of an arrest

or investigatory stop of a free citizen.” Graham, 490 U.S. at 394. The reasonableness of officers’

use of force “requires careful attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.” Id. at 396. Courts must assess “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Id. at 397. This Circuit has “consistently held that various types

of force applied after the subduing of a suspect are unreasonable and a violation of a clearly

established right.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004) (citing

cases); see also Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006). Here, the district court

did not err in denying qualified immunity to Ellis and Lane. Under Wheeler’s version of the facts,

Ellis and Lane used gratuitous force after Wheeler had surrendered and submitted to arrest, thus

violating a clearly established constitutional right. To the extent there are disputes over the facts,

we lack jurisdiction to address them.

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No. 09-4089
Wheeler v. City of Cleveland

       The court also properly determined that Ellis and Lane are not immune from liability against

the state-law claims. Ohio Revised Code § 2744.03(A)(6)(b) provides that employees of political

subdivisions are immune from liability unless “[t]he employee’s acts or omissions were with

malicious purpose, in bad faith, or in a wanton or reckless manner.” Wheeler’s evidence creates a

genuine issue of material fact about whether the officers acted in a wanton or reckless manner by

repeatedly striking Wheeler after he had fully submitted to arrest, and so the denial of summary

judgment on this issue was proper.

       The balance of Defendants’ claims on appeal are not properly before us. We lack jurisdiction

over Cleveland’s appeal of the district court’s denial of its motion for summary judgment on the

unlawful detention claim. “A city is not entitled to claim qualified immunity, and thus may not

normally appeal the district court's denial of summary judgment as to it.” Meals, 493 F.3d at 727

(citing Owen v. City of Independence, 445 U.S. 622, 650 (1980)). We may exercise pendent

jurisdiction over issues raised in Cleveland’s appeal only to the extent they are “‘inextricably

intertwined’ with the question of qualified immunity of [Officers Ellis and Lane], and review of

those issues is necessary for meaningful review of [the officers’] claim of qualified immunity.” Id.

Wheeler’s claim that Cleveland had an unlawful policy or procedure that led to him being detained

for 35 hours without being brought before a magistrate, and then released without charge, is wholly

distinct from Wheeler’s excessive-force claim against Officers Ellis and Lane. The two legal claims,

excessive force and unlawful detention, have separate elements and separate factual predicates, and

so they are not “inextricably intertwined” for purposes of conferring appellate jurisdiction. We also

reject Cleveland’s argument that Michigan Bell Telephone Co. v. Climax Telephone Co., 202 F.3d

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No. 09-4089
Wheeler v. City of Cleveland

862, 867 (6th Cir. 2000), confers jurisdiction. Cleveland’s reading of Michigan Bell is overbroad,

and that case does not provide an independent ground for appellate jurisdiction here. Finally, we

lack jurisdiction over Defendant’s argument that the district court erred in failing to dismiss

Wheeler’s claim that Officers Ellis and Lane violated Wheeler’s Fourteenth Amendment due-process

rights as duplicative of the Fourth Amendment excessive-force claim. This argument attacks the

district court’s denial of summary judgment, not qualified immunity. It therefore does not fit within

an exception to our lack of jurisdiction over interlocutory appeals.

       The district court’s denial of qualified immunity to Officers Ellis and Lane is AFFIRMED,

and the balance of the appeal is DISMISSED for lack of jurisdiction.




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