                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0244n.06

                                             Case No. 15-3861                                     FILED
                                                                                          May 06, 2016
                             UNITED STATES COURT OF APPEALS                           DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT


RONALD HARRIS,                                            )
                                                          )
        Plaintiff-Appellee,                               )
                                                          )        ON APPEAL FROM THE UNITED
v.                                                        )        STATES DISTRICT COURT FOR
                                                          )        THE NORTHERN DISTRICT OF
ROBERT LANGLEY; PATRICK                                   )        OHIO
PETRANEK; CLEVELAND POLICE                                )
DEPARTMENT; CALVIN WILLIAMS;                              )
CITY OF CLEVELAND,                                        )
                                                          )
        Defendants,                                       )
                                                          )
DOMINIK PENDLETON, Individually and as                    )
an Employee of the Cleveland Police                       )
Department,                                               )
                                                          )
        Defendant-Appellant.                              )


BEFORE: BATCHELDER and WHITE, Circuit Judges; LIPMAN, District Judge.*

        SHERYL H. LIPMAN, District Judge.                     This appeal addresses whether Defendant

Officer Dominik Pendleton, a Cleveland Police Officer, is entitled to immunity from federal

statutory and state common law claims brought by Plaintiff Ronald Harris stemming from

allegations that Officer Pendleton body-slammed and handcuffed Harris for no apparent reason.


*
 The Honorable Sheryl H. Lipman, United States District Judge for the Western District of Tennessee, sitting by
designation.
Case No. 15-3861
Ronald Harris v. Robert Langley, et al.

Officer Pendleton moved for summary judgment, asserting the defense of qualified immunity

and state-law immunity. The district court denied Officer Pendleton summary judgment on

Harris’ claims of excessive force and unlawful seizure under the Fourth Amendment, assault and

battery, and false arrest and imprisonment. For the reasons set forth below, we AFFIRM the

district court’s decision.

I.      BACKGROUND

        On July 19, 2013, Harris called 911, twice, to report that his eighty-six year old mother

required evaluation by emergency medical services (“EMS”) for “mental status changes.” R. 26,

Harris Depo., PID 153. Harris, a retired nurse in his sixties, was concerned that his mother’s

unusual speech patterns, “body mechanics,” and behavior were precursors to a stroke. Id. at PID

150, 152, 174. Officer Pendleton, a patrol officer for the City of Cleveland, Division of Police,

and his partner, Officer Langley, arrived at Harris’ residence after receiving a call from dispatch

to conduct a welfare check on an elderly female. The parties disagree about what transpired

next; however, because of the posture of this case – an appeal of a denial of summary judgment

on qualified immunity grounds – we only consider, and recite, the facts in the most favorable

view for Harris. See Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (“[T]he defendant

must nonetheless be willing to concede the most favorable view of the facts to the plaintiff for

purposes of the appeal.”).

        According to Harris, when the officers arrived at his door, Harris informed them that he

had asked for EMS, and not for police assistance. R. 26, Harris Depo., PID 153-54. Harris

repeated that sentiment at least once, but the police officers did not acknowledge Harris’

statements. Id. at PID 154, 166. Believing there had been “a problem of communication with

us,” Harris invited each officer to come inside. Id. at PID 155. Both officers declined the


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invitation, stating that it was too hot. Id. at PID 155-56. Harris then began to pull his door

closed and reach for the keys to lock it. Id. at PID 156, 164-65.

       At that moment, according to Harris, Officer Pendleton opened the door and was “all in

[Harris’] face.” Id. at PID 156. Officer Pendleton body-slammed Harris and knocked him to the

floor on his back. Id. As a result, Harris hit his head on the back of the wall, stunning him to the

point that he was temporarily unsure of where he was. Id. Officer Pendleton placed his left knee

on Harris’ back, grabbed Harris’ wrist, and handcuffed him. Id. at PID 156-57. Harris asked

Officer Pendleton, multiple times, why he was being handcuffed, and Officer Pendleton replied

that it was because Harris had called him a “motherfucker.” Id. at PID 156, 166. Harris,

however, claims that he did not use that word or any other vulgar or aggressive language with the

officers. Id. at PID 166.        Harris was handcuffed for approximately two minutes. R. 27,

Pendleton Depo., PID 217. Shortly after this incident, Officer Langley entered Harris’ home and

said that he would call a supervisor. R. 26, Harris Depo., PID 158. A supervisor arrived at the

scene, and Harris filled out a complaint against Officer Pendleton. Id. at PID 159. Harris

“wasn’t in any shape to seek medical treatment that day,” but at some point he was examined at

the VA hospital for injuries to his back and right wrist, and for general soreness. Id. at PID 188.

At no point did Officers Pendleton or Langley speak to Harris’ mother or attempt to ascertain her

health status. Id. at PID 158.

II.    ANALYSIS

       A. Jurisdiction

       Pursuant to 28 U.S.C. § 1291, this court has “jurisdiction of appeals from all final

decisions of the district courts.”     “Denial of summary judgment is usually considered an

interlocutory order, not a final judgment, and thus not appealable to this court. However, denial


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of a motion for summary judgment on the ground of qualified immunity may be deemed a final,

appealable order because the qualified immunity doctrine exists partly to protect officials from

having to stand trial, and a defendant wrongly forced to go to trial loses the benefit of the

immunity even if exonerated after trial.” Bishop v. Hackel, 636 F.3d 757, 764 (6th Cir. 2011).

Accordingly, this court has jurisdiction to review a district court’s denial of a claim of qualified

immunity to the extent that the appeal raises questions of law, “notwithstanding the absence of a

final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Johnson v. Jones,

515 U.S. 304, 317 (1995) (“[C]onsiderations of delay, comparative expertise of trial and

appellate courts, and wise use of appellate resources argue in favor of limiting interlocutory

appeals of ‘qualified immunity’ matters to cases presenting more abstract issues of law.”).

       “[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.” Johnson v. Jones, 515 U.S. 304, 319-20

(1995). “Instead, a defendant denied qualified immunity may appeal only if the issue on appeal

is 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).

       Here, Officer Pendleton presents three issues for review:

       (1) Whether the District Court erred by denying summary judgment as to the excessive
           force claim when Officer Pendleton’s alleged conduct would have been objectively
           reasonable?

       (2) Whether the District Court erred by denying summary judgment as to the unlawful
           seizure claim when the alleged detention of suspect was based upon probable cause?

       (3) Whether the District Court erred by denying summary judgment as to the state-law
           claims when Officer Pendleton’s alleged conduct was not malicious, in bad faith, or
           wanton or reckless?



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Pendleton Br. 7.     Harris opposes appellate jurisdiction, asserting that Officer Pendleton’s

“statement in support of jurisdiction, as well as the arguments themselves, do not identify the

specific legal issue but only complain of the district court’s weighing of factors . . . .” Harris

Br. 5. The court agrees that Officer Pendleton wastes much of his brief arguing that the district

court did not weigh certain disputed facts properly. See Estate of Carter v. City of Detroit,

408 F.3d 305, 309-10 (6th Cir. 2005) (“Because this court does not have appellate jurisdiction

over factual issues, a defendant must ‘concede the most favorable view of the facts to the

plaintiff for purposes of the appeal.’”) (quoting Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.

1998)).1   However, “even where, as here, the defendant makes impermissible arguments

regarding disputes of fact, if the defendant also raises the purely legal issue of whether the

plaintiff's facts show that the defendant violated clearly established law, then there is an issue

over which this court has jurisdiction.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir.

2013). Because Officer Pendleton does at times concede Harris’ version of the facts and argues

that, despite this concession, he did not violate any of Harris’ clearly established constitutional

rights, this court has jurisdiction to hear his appeal. Pendleton Br. 17, 23. Thus we proceed on

Harris’ version of the facts. But “in accepting the district court’s factual determinations and

relying on the plaintiff’s record evidence for the purpose of deciding interlocutory appeal, we do


1
  For instance, Officer Pendleton argues that “[t]he District Court . . . incorrectly held that it must
accept Plaintiff’s version and may not weigh different versions. Rather the appropriate standard
calls for determining whether or not an officer’s actions were reasonable under ‘the totality of
the circumstances.’” Pendleton Br. 20 (quoting Graham v. Connor, 490 U.S. 386, 396-97
(1989)). This statement is wholly incorrect: Officer Pendleton conflates the burden of proof with
the elements of an excessive force claim. At summary judgment, where there are disputed issues
of material fact, the district court is required to view the facts in the light most favorable to the
non-moving party, and then determine whether the totality of the circumstances demonstrates
that a use of force was objectively reasonable.


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not ourselves make any findings of fact or inference for purposes of any subsequent

proceedings.”    DiLuzio v. Vill. Of Yorkville, 796 F.3d 604, 611 (6th Cir. 2015) (citations

omitted).

       B. Qualified Immunity

       “Under the doctrine of qualified immunity, government officials performing discretionary

functions are shielded from civil liability unless their conduct violates clearly established

constitutional rights. Thus, a defendant is entitled to qualified immunity on summary judgment

unless the facts, when viewed in the light most favorable to the plaintiff, would permit a

reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the right

was clearly established.” Bishop, 636 F.3d at 765 (citing Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). “Either step can precede the other as desired.” Gordon v. Louisville/Jefferson Cty.

Metro Gov’t, 486 F. App’x 534, 541 (6th Cir. 2012). We review the district court’s denial of

summary judgment on the grounds of qualified immunity, as limited to questions of law, de

novo. Bishop, 636 F.3d at 765.

                1. Excessive Force

       We first review whether Officer Pendleton violated Harris’ Fourth Amendment right to

be free from excessive force when he allegedly grabbed Harris by the wrist, body-slammed him,

and placed his knee into Harris’ back. We then determine whether that right, if violated, was

clearly established.

       The Fourth Amendment prohibits police officers from using excessive force. Graham v.

Connor, 490 U.S. 386, 394 (1989). When a citizen claims “that law enforcement officials used

excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of his

person . . . such claims are properly analyzed under the Fourth Amendment’s ‘objective


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reasonableness’ standard.”    Id. at 388. “[O]bjective reasonableness turns on the facts and

circumstances of each particular case.       A court must make this determination from the

perspective of a reasonable officer on the scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)

(internal quotation and citation omitted). “Determining whether the force used to effect a

particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the

nature and quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotations

and citations omitted).

       The court must also examine the following factors in this balancing test: “the relationship

between the need for the use of force and the amount of force used; the extent of the plaintiff's

injury; any effort made by the officer to temper or to limit the amount of force; the severity of

the security problem at issue; the threat reasonably perceived by the officer; and whether the

plaintiff was actively resisting.” Kingsley, 135 S. Ct. at 2473. “Not every push or shove, even if

it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment. The calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

situation.” Graham, 490 U.S. at 396-97 (internal quotations and citation omitted); see also

Lopez v. City of Cleveland, 625 F. App’x 742, 746 (6th Cir. 2015) (“The Court has identified

three non-exhaustive factors for lower courts to consider in determining the reasonableness of a

police officer’s use of force: (1) the severity of the crime at issue; (2) whether the suspect posed




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an immediate threat to the safety of the officer or others; and (3) whether the suspect actively

resisted arrest or attempted to evade arrest by flight.”).

        Here, conceding the facts in favor of Harris, Officer Pendleton’s actions are sufficiently

excessive to be in violation of the Fourth Amendment. Harris requested EMS to come to his

home to evaluate his elderly mother’s health. When two police officers arrived on the scene,

Harris explained to them that he had requested EMS and not the police. Both police officers

ignored Harris, at which point Harris invited them to come inside. Both police officers denied

Harris’ invitation. At no point did the police officers inquire into Harris’ mother’s health,

vitiating any argument that the police officers felt compelled to use force for Harris’ mother’s

sake. Moreover, Harris did not exhibit any signs of threatening or at-risk behavior to the police

officers.   There was no need for any force in this situation because no crime was being

committed and there was no immediate threat to the safety of anyone; yet, when Harris decided

to close the door to his own home, Officer Pendleton suddenly attacked him without warning.

This unprovoked violence cannot be excused as the consequence of a “split-second judgment.”

The facts, as alleged, portray a patently unreasonable use of force.

        The court must next determine whether Harris’ violated rights were clearly established.

For a right to be clearly established, “the contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “In deciding whether the right was clearly established, the

Supreme Court has cautioned lower courts ‘not to define clearly established law at a high level of

generality.’” Al-Lamadani v. Lang, 624 F. App’x 405, 409 (6th Cir. 2015) (citing Ashcroft v. al-

Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011)). “This is not to say that an

official action is protected by qualified immunity unless the very action in question has


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previously been held unlawful, but it is to say that in the light of pre-existing law the

unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (internal citation omitted). Here,

there is no opacity in the Fourth Amendment’s prohibition on unprovoked body slams from

police officers, whether this exact scenario has been held unlawful in a previous decision or not.

Because Officer Pendleton allegedly violated Harris’ clearly established constitutional right to be

free from excessive force, Officer Pendleton does not receive the shield of qualified immunity on

this claim.

               2. Unlawful Detention

       We now determine whether Officer Pendleton’s temporary handcuffing of Harris was an

unlawful seizure in violation of the Fourth Amendment, and, if so, whether that right was clearly

established.

       There are two prongs to a Fourth Amendment unlawful seizure analysis: first, whether a

“seizure” occurred, and, second, whether that seizure was unreasonable. Terry v. Ohio, 392 U.S.

1, 16 (1968). As to the first inquiry, “[i]t must be recognized that whenever a police officer

accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at

16; see also Al-Lamadani, 624 F. App’x at 410 (“The Fourth Amendment protects against

unreasonable seizures, including seizures that involve only a brief detention short of traditional

arrest.”) (quotation marks and citation omitted). Although Harris was not arrested, it is clear that

Officer Pendleton seized Harris when he placed his knee into Harris’ back and handcuffed him,

restraining his liberty. We next consider the second prong of the analysis: whether that seizure

was unreasonable.

       Every arrest must be supported by probable cause to be considered reasonable; however,

in a case such as this one, where there has been a limited intrusion on a person’s liberty but no


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formal arrest, that intrusion may be justified by something less than probable cause.           See

Michigan v. Summers, 452 U.S. 692, 700 (1981); see also Bailey v. United States, 133 S. Ct.

1031, 1037 (2013) (cataloging cases where a less severe intrusion was justified absent probable

cause). “There is no ready test for determining reasonableness other than by balancing the need

to search (or seize) against the invasion which the search (or seizure) entails.” Terry, 392 U.S. at

21 (internal quotation marks omitted). Here, again in the most favorable view for Harris, his

detention was unreasonable because the scale tips uniformly on one side – there was no need to

detain Harris, but his liberty was invaded nonetheless.

       In his brief, Officer Pendleton contends that he had probable cause to detain Harris

because Harris obstructed official business in violation of Ohio Revised Code § 2921.31 and

Cleveland Codified Ordinance 615.06. Pendleton Br. 18-19. Ohio Revised Code § 2921.31

states that, “no person, without privilege to do so and with purpose to prevent, obstruct, or delay

the performance by a public official of any authorized act within the public official’s official

capacity, shall do any act that hampers or impedes a public official in the performance of the

public official’s lawful duties.” The Cleveland Ordinance includes a parallel provision requiring

a purposeful intent to obstruct the performance of a public official’s duty. Harris acknowledged

that he made a call for a welfare check, and that public officials are asked to conduct welfare

checks; however, relying on Harris’ version of the facts, there can be no question that Harris did

not intend to prevent, obstruct, or delay the performance of the police officers by pulling his door

closed after the police officers had just declined his invitation to enter his home.

       Officer Pendleton also lacked probable cause to suspect that Harris pulled the door closed

to commit a crime against his elderly mother. Harris called for emergency medical services,

greeted the police officers when they arrived at the scene, and invited the police into his home –


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there is no reason to believe that Harris was in pursuit of harming his mother. Although there

was no probable cause to believe that Harris had committed or was about to commit any crime,

that does not end the analysis because, in Summers, 452 U.S. at 700, the Supreme Court

enumerated a number of other considerations that may justify a limited intrusion absent probable

cause.

         In Summers, the Supreme Court found that a limited intrusion was reasonable when the

police temporarily restrained a person, absent probable cause, while conducting a search in that

person’s home pursuant to a validly executed search warrant. Id. “The rule announced in

Summers allows detention incident to the execution of a search warrant ‘because the character of

the additional intrusion caused by detention is slight and because the justifications for detention

are substantial.’” Bailey v. United States, 133 S. Ct. 1031, 1038, 185 L. Ed. 2d 19 (2013)

(quoting Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005)). The

additional intrusion was considered “slight” because, according to the Supreme Court, a

homeowner may wish to remain in her home during a search and the impaired dignity of a public

detention is absent inside the privacy of one’s own home. Summers, 452 U.S at 700. The Court

also tallied the following justifications for such intrusions: preventing flight, minimizing the risk

of harm to the officers, a suspicion of wrongdoing regarding the detained resident, and

promoting the orderly completion of the search. Id. at 702-703. Ultimately, “[a] determination

of reasonableness hinges on ‘the law enforcement interest and the nature of the ‘articulable facts’

supporting the detention.’” Gordon, 486 F. App’x at 542 (quoting Summers, 452 U.S. at 702).

         Here, there are no articulable facts or law enforcement interests supporting any detention,

light or otherwise: There was no “interest in minimizing the risk of harm to the officers,”

Summers, 452 U.S. at 702, because there was no credible threat to the police officers’ safety


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when Harris pulled his door closed after the police officers declined his invitation to enter; there

was no valid search warrant requiring detention for “the orderly completion of [a] search,” id. at

703; there was no viable concern that Harris was engaged in wrongdoing, as discussed supra,

nor was there any “legitimate law enforcement interest in preventing flight in the event that

incriminating evidence is found,” id. at 702, because there was no search warrant and Harris was

the person who called for emergency medical services and even invited the police officers into

his home. Conceding Harris’ version of the facts, Officer Pendleton’s seizure of Harris was

demonstrably unreasonable. Moreover, the Fourth Amendment clearly prohibits an absolutely

unjustified seizure of an individual. As a matter of law, Officer Pendleton is not entitled to the

shield of qualified immunity for this claim.

       C. State-law Immunity

       The district court denied Officer Pendleton’s state-law immunity defense for the claims

of assault and battery and false arrest and imprisonment. Ohio Revised Code § 2744.03(A)(6)

provides immunity to state employees of political subdivisions for any act in connection with a

government function causing injury, unless the act was “manifestly outside the scope of the

employee’s employment or official responsibilities” or was done “with malicious purpose, in bad

faith, or in a wanton or reckless manner.” When federal qualified immunity and Ohio state-law

immunity under § 2744.03(A)(6) rest on the same questions of material fact, the court may

review the state-law immunity defense “through the lens of the federal qualified immunity

analysis.” Chappell v. City of Cleveland, 585 F.3d 901, 907 n.1 (6th Cir. 2009). As discussed,

conceding the facts in favor of Harris, there is no justification for either the body slam or the

detention; accordingly, there is no state-law immunity from the claims arising out of those




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actions because they were done in bad faith and in a wanton or reckless manner. As a matter of

law, Officer Pendleton is not entitled to state-law immunity from Harris’ state-law claims.



III.   CONCLUSION

       For the foregoing reasons, the order of the district court is AFFIRMED.




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