               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                 FILE NAME: 15A0376N.06

                                      CASE NO. 14-3330
                                                                                      FILED
                                                                                 May 27, 2015
                         UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

 DELRICO OLIVER,                                    )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )    ON APPEAL FROM THE
                v.                                  )    UNITED STATES DISTRICT
                                                    )    COURT FOR THE SOUTHERN
 KARL GREENE,                                       )    DISTRICT OF OHIO
                                                    )
       Defendant-Appellant.                         )    OPINION
                                                    )

Before: BATCHELDER, MOORE, and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal, defendant

Karl Greene challenges the district court’s denial of his assertion of qualified immunity in this

42 U.S.C. § 1983 prisoner civil rights action alleging excessive force. We AFFIRM.

                                               I.

       Delrico Oliver was a prisoner at an Ohio Department of Youth Services facility where

Karl Greene was a guard. In an altercation between the two on February 10, 2011, Greene

grabbed ahold of Oliver, wrestled him to the ground, choked him, and struck him in the face

repeatedly, causing injury. Surveillance video recorded the altercation. When Oliver sued,

claiming excessive force, Greene moved for summary judgment based on qualified immunity,

arguing that Oliver had provoked the use of force, which was necessary and reasonable.

       The district court denied Greene’s motion upon “find[ing] that there are genuine disputes

as to material facts regarding whether Plaintiff [Oliver]’s actions created a threat to Defendant

Greene and other employees and whether Greene’s initial use of force was reasonable under the

circumstances.” R. 33 at 17-18. Greene filed this timely interlocutory appeal.
No.14-3330, Oliver v. Greene




                                                 II.

        Ordinarily, such a decision would implicate Johnson v. Jones, 515 U.S. 304, 313 (1995),

which holds, generally, that we lack jurisdiction over an appeal from a denial of qualified

immunity when the denial rests on a genuine dispute of material facts, such as here, whether

Oliver’s actions created a threat to Greene and others. But Johnson v. Jones is narrow and

applies only when the challenge on appeal is to an underlying decision that “merely decided a

question of evidentiary sufficiency, i.e., which facts a party may, or may not, be able to prove at

trial.” Plumhoff v. Rickard, 572 U.S. --, 134 S. Ct. 2012, 2019 (2014) (internal quotation marks

and citations omitted). As we have said elsewhere, “Plumhoff appears to cabin the reach of

Johnson to ‘purely factual issues that the trial court might confront if the case were tried.’”

Roberson v. Torres, 770 F.3d 398, 403 (6th Cir. 2014) (quoting Plumhoff, 134 S. Ct. at 2019).

See also Family Service Ass’n ex rel. Coil v. Wells Twp., -- F.3d --, No. 14-4020, 2015 WL

1726571, *5 (6th Cir. Apr. 16, 2015) (“[The defendant] may be wrong on the merits but that

does not deny us jurisdiction to say so—or for that matter deny [the plaintiff] the benefit of a

merits ruling that establishes on this record that a jury reasonably could rule for him.”).

        Here, Greene raises two arguments on appeal, neither of which directly challenges the

district court’s finding of a genuine dispute of material fact as to whether Oliver’s actions created

a threat to Greene and others.        Instead, Greene argues that his evidence, including the

surveillance video, so overwhelms (i.e., blatantly contradicts) Oliver’s version that it renders the

facts undisputed (and in his favor). See Austin v. Redford Twp. Police Dept., 690 F.3d 490, 496

(6th Cir. 2012) (“In exceptional circumstances, an appellate court may overrule a district court’s

determination that a factual dispute exists where evidence in the record establishes that the

determination is ‘blatantly and demonstrably false.’” (citation omitted)). Alternatively, Green

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No.14-3330, Oliver v. Greene


argues that he was entitled to qualified immunity even if we accept Oliver’s version, thus

rendering the facts undisputed (in Oliver’s favor). See Roberson, 770 F.3d at 405 (“We have

jurisdiction over this question on interlocutory review because it asks whether the facts, as

alleged, indicate a violation of clearly established law, such that the denial of qualified immunity

was appropriate.”). Consequently, we have jurisdiction over this interlocutory appeal.

                                                III.

        As the district court framed it, the ultimate question was whether Oliver had created a

threat that justified Greene’s use of force that was necessary and reasonable. Because both

parties offered competing evidence, the court found a genuine dispute of material facts and,

hence, a decision for a jury. Greene does not contest this decision directly. Instead, Greene

attempts to re-cast the facts as undisputed (either in his favor or Oliver’s) and seeks a

determination as a matter of law, based on one or the other “undisputed” version of the facts.

        Greene’s primary contention is that his evidence, most notably the surveillance video,

renders the facts and events in question undisputed, such that the district court erred by

“accept[ing] the Plaintiff’s version of events as true,” R. 33 at 12-13, and “viewing the evidence

in the light most favorable to Plaintiff, as required on summary judgment,” R. 33 at 14. While

Greene is partially correct about the value of a surveillance video, he is incorrect about the

district court’s analysis and whether the material facts are subject to genuine dispute here.

        Typically, “[a]t the summary judgment stage, facts must be viewed in the light most

favorable to the nonmoving party,” but “only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007). More to the point:

        When opposing parties tell two different stories, one of which is blatantly
        contradicted by the record, so that no reasonable jury could believe it, a court
        should not adopt that version of the facts for purposes of ruling on a motion for
        summary judgment. . . . [Rather,] [the court] should [] view[] the facts in the light
        depicted by the videotape.

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No.14-3330, Oliver v. Greene


Id. at 380-81. But in finding a “blatant contradiction” the Court was considering a situation in

which the video would “speak for itself.” Id. at 378 n.5; see also Carter v. City of Wyoming,

294 F. App’x 990, 992 (6th Cir. 2008) (“Appellate judges are free to trust their eyes when a

videotape unequivocally shows what happened during an encounter with the police and

unequivocally contradicts the claimant’s version of events.”).         Inferences supported by the

record, including the video, remain drawn in favor of the non-moving party. See Scott, 550 U.S.

at 381 n.8.

        Here, Oliver contends that Greene needlessly subjected him to excessive force by taking

him to the ground, choking him, and repeatedly punching him in the face. Greene replies that,

initially, he was trying to restrain Oliver, an unruly inmate, and later was just defending himself.

Moreover, Greene argues that his evidence, including not only the video but also certain

deposition testimony and exhibits, blatantly contradict Oliver’s version and therefore render

“undisputed” the events at the initiation of the altercation and prove unequivocally that Oliver

initiated it. Greene also cites cases to support his contention that courts can, pursuant to Scott,

rely on evidence other than video (e.g., medical records) to refute a party’s version of events.

        Taking this last contention first, it goes too far on the present facts. Here, Greene’s claim

is that his other evidence (deposition testimony, affidavits, and prison records) is more credible

than is Oliver (a proven liar) and, therefore, he has blatantly contradicted Oliver to the point that

there is no dispute of fact as to whether Oliver started the fight. That is neither Scott’s holding

nor the law. Oliver urges one view, Greene’s evidence supports another. That is a dispute.

        As for the surveillance video and this court’s ability to view the facts in the light depicted

by the video (such that it speaks for itself), Greene is mistaken about that as well. Greene does

not argue that the district court ignored or misrepresented the events in the video. The court

referred to the video several times in its opinion, giving both objective description and analysis:

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No.14-3330, Oliver v. Greene


                The video evidence shows that Plaintiff went to the podium and signed the
        YBIR(s). He then stayed at the podium talking animatedly to Greene. Thereafter,
        Plaintiff walked to his room, put on his tennis shoes and returned to the podium
        unsolicited by Defendant Greene. As Plaintiff returned to the podium, he put[]
        his hands up in the surrender position. The video surveillance of the podium
        shows Plaintiff aggressively approach[ed] Defendants Greene, Anderson,
        Barbee[,] and Waryck as they, in turn, form[ed] a semi-circle around Plaintiff in
        an attempt to confine Plaintiff. Defendant Greene then extended his arm into
        Plaintiff as he approached. Plaintiff swiped Defendant Greene’s hand away.
        Plaintiff then appear[ed] to back away from Defendant Greene. Defendant
        Greene advance[d] toward Plaintiff. Waryck attempted to separate Plaintiff and
        Defendant Greene and instructed Plaintiff to ‘lock up’ (go to his room) and told
        Defendant Greene to step back.
               According to Plaintiff’s Affidavit, he then pointed at Greene and told him
        if he was going to do something to just go ahead and do it. According to Waryck
        and other witnesses, Plaintiff attempted to jab and/or punch Defendant Greene. In
        response, Defendant Greene grabbed Plaintiff and was trying to take him to the
        ground. The video shows that Greene had to push Waryck to the side to be able to
        reach Plaintiff. Thereafter, an eighty-four (84) second struggle ensued.

R. 33 at 4-5 (citations omitted) (emphasis added). Greene does not dispute this rendition of

events. Instead, he disputes the meaning of and motivations that underlie these events. That is,

he disputes the inferences to be drawn from them. The district court continued:

        As noted [] and as shown on the video, prior to the altercation, Waryck stepped
        between Plaintiff and Defendant Greene in an attempt to de-escalate the situation.
        Waryck then told Defendant Greene to step back away from the area. Despite this
        directive, Defendant Greene pushed Waryck out of the way in order to grab
        Plaintiff. Moreover, Barbee and Anderson were also present at the scene at this
        time. Thus, this evidence suggests that no force was needed to control Plaintiff.
        To the contrary, the evidence establishes that Waryck told Defendant Greene to
        back away from Plaintiff.

R. 33 at 14-15 (citations omitted; emphasis added).

        Greene does not contend that the panel should “trust their eyes [because the] videotape

unequivocally shows what happened during [the] encounter,” see Carter, 294 F. App’x at 992, or

that the video “speaks for itself,” see Scott, 550 U.S. at 378 n.5. Greene urges us to interpret the

video in line with his argument and his supporting evidence. That is not the law.

               The problem for [the defendant] is that his record-supported evidence,
        including the videotape, does not ‘blatantly contradict’ [the plaintiff]’s description

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No.14-3330, Oliver v. Greene


        of what happened . . . . Once it is established that this evidence does not ‘blatantly
        contradict’ [the plaintiff]’s version of the facts, that leaves [the defendant] only
        with quibbles over the district court’s reading of the summary-judgment record,
        which we do not have authority to second guess.

                . . . [The defendant] misreads Scott. That decision does not stand for the
        proposition that a court should grant summary judgment if the moving party
        merely presents conflicting evidence. On the contrary, the existence of a material
        factual dispute makes denial of summary judgment a court’s only appropriate
        response. Scott stands only for the narrow proposition that summary judgment is
        appropriate when one party’s story ‘is blatantly contradicted by the record, so that
        no reasonable jury could believe it.’ [The defendant] at most presented evidence
        that cast doubt on [the plaintiff]’s version of the facts. That is hardly enough for
        us to conclude that ‘no reasonable jury’ could find that [the defendant initiated the
        confrontation]. . . .

See Carter, 294 F. App’x at 992-93 (citations and emphasis omitted).

        Greene’s deposition testimony, affidavits, prison records, and his view of the meaning of

and motivations for the events depicted in the surveillance video might persuade a jury, but it

does not “speak for itself,” Scott, 550 U.S at 378 n.5, nor does it “unequivocally contradict[]

[Oliver]’s version of events,” see Carter, 294 F. App’x at 992. That is, Greene has not shown

that Oliver’s version is “blatantly and demonstrably false,” such that we “may overrule [the]

district court’s determination that a factual dispute exists.” See Austin, 690 F.3d at 496.

        Alternatively, Greene argues that he was entitled to qualified immunity even accepting

Oliver’s version of events. Greene bases this argument on what he sees as “[t]he undisputed

facts surrounding [his] use of force”; facts that allegedly indicate force was necessary “to protect

himself” from Oliver’s assaults and “to maintain or restore order.” Apt. Br. at 34; Apt. Reply Br.

at 16 (“There is sufficient evidence already in the record that was not genuinely disputed to

prove that YS Greene’s use of force in restraining Mr. Oliver by taking him to the floor was

reasonable and necessary.”). But Oliver denies that he provoked Greene and contends that

Greene needlessly injured him by way of excessive force when he took him to the ground,




                                                  6
No.14-3330, Oliver v. Greene


choked him, and repeatedly punched him in the face. Under this version of the facts, Greene did

subject Oliver to excessive force and, correspondingly, is not entitled to qualified immunity.

                                               IV.

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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No.14-3330, Oliver v. Greene


        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment.                           The

majority and I agree that we have jurisdiction to decide whether the record blatantly contradicts

Oliver’s version of the facts. We also agree that the video and the record as a whole do not

definitively show that Oliver’s description of the event is incredible. We disagree, however,

about whether, after concluding that the record does not blatantly conflict with Oliver’s version

of events, we have jurisdiction to consider Greene’s claim that he is immune from suit. Binding

precedent in this court compels the conclusion that we do not.

        We are without jurisdiction to consider interlocutory appeals contesting a denial of

qualified immunity insofar as the appellant officer disputes the plaintiff’s record-supported

version of the facts. Johnson v. Jones, 515 U.S. 304, 319–20 (1995). The one exception to this

rule is when “the plaintiff’s version of the facts, which the district court accepted, was ‘so utterly

discredited by the record . . . that no reasonable jury could have believed him.’” Romo v.

Largen, 723 F.3d 670, 674 n.3 (6th Cir. 2013) (quoting Scott v. Harris, 550 U.S. 372, 380

(2007)). Once the court of appeals has concluded that the record does not blatantly contradict

the plaintiff’s version of events, however, we do not have jurisdiction to conduct a de novo

review of the district court’s determination that there is a genuine dispute of material fact. Romo,

723 F.3d at 674–75 n.3, 675–76. Neither the Supreme Court nor this court sitting en banc has

overruled Romo, and therefore we are bound by its holding. 6 Cir. R. 32.1(b).

        The majority further contends that Greene has argued alternatively that he is entitled to

qualified immunity even if the court accepts Oliver’s version of the facts. True, Greene purports

to raise an alternative argument in his “Summary of Argument” that even under Oliver’s facts

the force Greene used was not excessive as a matter of law, Appellant Br. at 27, but Greene does

not actually make the argument in his brief. Greene’s entire argument is premised on his own

version of the facts. After reciting the standard of review and the purpose of qualified immunity,

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No.14-3330, Oliver v. Greene


Greene immediately launches into argument about why Oliver is not to be believed. Appellant

Br. at 32–33. Greene then argues that his use of force was justified to protect himself and to

maintain or restore discipline. Id. at 33–34. But his arguments rest entirely on two critical,

disputed facts: first, that Oliver struck or attempted to strike Greene three times, id. at 32–33;

and second, that Oliver had disobeyed several orders, id. at 33–35. The only authorities Greene

cites in support of his argument are cases where the corrections officers’ use of force was

justified by self-defense. See Appellant Br. at 35 (citing Johnson v. Gallagher, No. CIV. A. 93-

0782, 1994 WL 25378, at *3 (E.D. Pa. Jan. 28, 1994); Peebles v. Frey, 617 F. Supp. 1072, 1074

(E.D. Mo. 1985), aff’d, 802 F.2d 462 (8th Cir. 1986) (table)). In sum, Greene’s entire “legal”

argument rests on a finding that Oliver punched him and disobeyed orders and nothing more, and

Greene does not address whether his use of force was justified if Oliver had simply pointed his

finger and had followed orders.

        Our published cases establish that “[m]ere conclusory statements that the officers

construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction upon this

Court,” Thompson v. Grida, 656 F.3d 365, 368 (6th Cir. 2011), unless we can isolate legal

arguments. See Estate of Carter v. City of Detroit, 408 F.3d 305, 309–10 (6th Cir. 2005) (“If . . .

aside from the impermissible arguments regarding disputes of fact, the defendant also raises the

purely legal question of whether the facts alleged support a claim of violation of clearly

established law, then there is an issue over which this court has jurisdiction.”) (citation, internal

quotation marks, and alterations omitted). Because Greene’s entire legal argument rests on his

version of the facts, we do not have jurisdiction to reach the alternative qualified-immunity

argument. Thus, I would affirm the district court on the sole basis that the record does not

blatantly contradict Oliver’s version of the facts. Insofar as Greene otherwise disputes Oliver’s

version of the facts, Greene’s appeal should be dismissed.

                                                 9
