                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0243p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________
                                                                                 FILED
                                                                             Aug 20, 2013
 DWAYNE MIEDZIANOWSKI, as an agent for the X                          DEBORAH S. HUNT, Clerk
 municipal corporation and as an individual;        -
                                                    -
 JEREMY MCGRAW , as an agent of the                 -    No. 13-101
 Municipal corporation, and as                      -
 an individual, jointly and severally,               >
                                                    ,
                                     Petitioners. N
                         Upon Petition for Permission to Appeal
                     from an order of United States District Court
                    for the Eastern District of Michigan at Bay City.
             No. 1:08-cv-10997—Thomas L. Ludington, District Judge.

                         Decided and Filed: August 20, 2013

   Before: BATCHELDER, Chief Judge; KEITH and STRANCH, Circuit Judges.

                                 _________________

                                        ORDER
                                 _________________

       Police officer Petitioners—Defendants below—in this civil rights action petition
for leave to appeal the order granting Plaintiff-Respondent a new trial on the ground that
the jury had been erroneously instructed that to succeed on his claims of deliberate
indifference to a known medical need, Plaintiff was required to prove that Defendants’
deliberate indifference was the proximate cause of decedent’s death.

       This case involves the death of the Plaintiff’s brother, decedent William Scozzari,
who was fatally shot by two police officers, Defendants.             Plaintiff, acting as
representative of decedent’s estate, brought a civil rights action alleging claims of
excessive force and deliberate indifference to a known medical need. After Defendants’
motion for summary judgment on qualified immunity grounds was denied, a trial was
held and the jury found in favor of Defendants on both claims. The district court
instructed the jury that Plaintiff must prove Defendants’ deliberate indifference
proximately caused decedent’s death. Plaintiff filed a motion for new trial, arguing that

                                            1
No. 13-0101         In re Miedzianowski                                               Page 2


the district court reversibly erred by giving this instruction. The district court agreed, and
granted Plaintiff’s motion for a new trial only on the deliberate indifference claim
because our circuit has held that “in delay-of-treatment cases, it is not necessary to show
that the delay in providing medical care proximately caused the injury” when it would
be obvious to a layperson that there was a risk of serious harm without immediate
medical attention. Scozzari v. Miedzianowski, 454 F. App’x 455, 464 n.8 (6th Cir.
2012). For this conclusion, we relied on our published opinion in Estate of Owensby v.
City of Cincinnati, 414 F.3d 596, 604 (6th Cir. 2005).

        Defendants filed a motion for relief from the order granting a new trial, arguing
that they were entitled to qualified immunity on the deliberate-indifference claim; the
motion was denied, and their appeal of that ruling is also currently pending before this
Court. Defendants subsequently moved to certify the order granting a new trial for an
interlocutory appeal under 28 U.S.C. § 1292(b) regarding the question of whether
Plaintiff was required to prove proximate cause. Section 1292(b) provides as follows:

        When a district judge, in making in a civil action an order not otherwise
        appealable under this section, shall be of the opinion that such order
        involves a controlling question of law as to which there is substantial
        ground for difference of opinion and that an immediate appeal from the
        order may materially advance the ultimate termination of the litigation,
        he shall so state in writing in such order. The Court of Appeals which
        would have jurisdiction of an appeal of such action may thereupon, in its
        discretion, permit an appeal to be taken from such order . . . .

The district court granted the motion, and Defendants now seek permission to appeal to
this Court.

        Defendants cannot satisfy the requirement that “a substantial ground for
difference of opinion exists regarding the correctness of the decision” and so they may
not pursue an interlocutory appeal here. District courts in this circuit have interpreted
“a substantial ground for difference of opinion . . . regarding the correctness of the
decision” to mean when “(1) the question is difficult, novel and either a question on
which there is little precedent or one whose correct resolution is not substantially guided
No. 13-0101         In re Miedzianowski                                               Page 3


by previous decisions; (2) the question is difficult and of first impression; (3) a difference
of opinion exists within the controlling circuit; or (4) the circuits are split on the
question.” City of Dearborn v. Comcast of Mich. III, Inc., No. 08-10156, 2008 WL
5084203, at *3 (E.D. Mich. Nov. 24, 2008). The district court relied on the fact that
other circuits require a finding of proximate cause in delay-of-treatment cases. However,
there is no difference of opinion in this circuit, and we view the relevant inquiry under
the fourth prong to be whether there is a circuit split on a question that our own circuit
has not answered. Where our circuit has answered the question, the district court is
bound by our published authority. And so are we.

        Because there is governing precedent in this circuit that settles the issue at hand,
Defendants cannot show the extraordinary circumstances such that an interlocutory
appeal should be granted. See Kraus v. Bd. of Cnty. Rd. Comm’rs for Kent Cnty.,
364 F.2d 919, 922 (6th Cir. 1966) (observing that § 1292(b) “should be sparingly applied
“and” is to be used only in exceptional cases”).

        For the foregoing reasons, the petition for permission to file the interlocutory
appeal is DENIED.

                                        ENTERED BY ORDER OF THE COURT




                                        __________________________________
                                                 Deborah S. Hunt, Clerk
