                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0442n.06

                                            No. 08-3037

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                      FILED
                                                                                        Jun 30, 2009
                                                                                  LEONARD GREEN, Clerk
JOSHUA L. WRIGHT                                  )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )
                                                  )    ON APPEAL FROM THE UNITED
SIMON L. LEIS JR., Hamilton County                )    STATES DISTRICT COURT FOR THE
Sheriff; Deputy ADAM WONG; Sgt.                   )    SOUTHERN DISTRICT OF OHIO
MICHELLE MOORE; Deputy CHRIS                      )
WINGATE; Deputy ROBERT WAGNER;                    )
Deputy DOUGLAS ALLEN,                             )
                                                  )
       Defendants-Appellants.                     )



       Before: SILER, COOK, and GRIFFIN, Circuit Judges.


       PER CURIAM. In this 42 U.S.C. § 1983 action, Joshua L. Wright alleges that the

defendants—employees of the Hamilton County Jail—violated his constitutional right to be free

from excessive force. The defendants bring this interlocutory appeal from the district court’s order

denying their motions to dismiss and for a judgment on the pleadings. They challenge the district

court’s determination that: (1) jurisdiction existed regardless of Wright’s alleged failure to exhaust

his administrative remedies, and (2) qualified immunity does not shield them from suit.


       Our jurisdiction limits us to reviewing the district court’s order denying qualified immunity,

and we affirm.
No. 08-3037
Wright v. Leis


                                                I.


       The dispute in this case centers on the sufficiency of Wright’s amended complaint that

alleges that Hamilton County jailers assaulted him. According to Wright, the conflict arose from

Deputy Sheriff Douglas Allen’s impatience with Wright’s stopping to shake hands with another

inmate as the deputy was escorting him through the jail. Deputy Allen reacted by jerking Wright

through a doorway, causing Wright to spill a bag containing his belongings. When Deputy Allen

and Sergeant Michelle Moore ordered Wright to collect his property, Wright responded with

profanity. Moore then led Wright to a cell, tasing him twice along the way. Once in the cell, other

guards joined the tussle, repeatedly “beat[ing] and tas[ing]” Wright “without justification.” These

guards included Deputies Adam Wong, Chris Wingate, Robert Wagner, and five unknown deputies.

The amended complaint goes on to allege that Sheriff Simon L. Leis and the Hamilton County Board

of Commissioners caused the excessive force violation by failing to train the guards. Finally, the

amended complaint includes a state law assault-and-battery count, and a civil conspiracy count.


       The defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure

12(b)(1) for lack of jurisdiction because Wright allegedly failed to exhaust his administrative

remedies as required by the Prison Litigation Reform Act (“PLRA”). The defendants also moved

under Rule 12(c) for a judgment on the pleadings, claiming qualified immunity. The district court

dismissed Wright’s civil conspiracy claim (a determination not appealed), but rejected the




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Wright v. Leis


defendants’ claimed right to dismissal on all other claims. The parties agreed to dismiss the

Hamilton County Board of Commissioners. The remaining defendants timely appealed.


                                                 II.


       We begin by addressing Wright’s claim that we lack jurisdiction over this appeal. As for

defendants’ exhaustion challenge, Wright is correct. Section 1291 of Title 28 limits this court’s

jurisdiction to final judgments, United States v. Any & All Radio Station Transmission Equip., 204

F.3d 658, 668 (6th Cir. 2000), and “[t]he denial of a motion to dismiss on the grounds of failure to

exhaust administrative remedies is not, by any definition, a final judgment that ends the litigation

on the merits,” M.A. ex rel. E.S. v. State-Operated Sch. Dist. of Newark, 344 F.3d 335, 343 (3d Cir.

2003) (addressing exhaustion in a suit under the Individuals with Disabilities Act). Although

exceptions to 28 U.S.C. § 1291’s general rule exist, none apply here.


       The defendants misread Woodford v. Ngo, 548 U.S. 81 (2006). Although Woodford held that

the PLRA requires exhaustion of administrative remedies, id. at 93, that case does not alter the

straightforward rule of 28 U.S.C. § 1291. Woodford involved the appeal of a district court’s decision

to grant a defendant’s motion to dismiss. Id. at 87. The district court here denied the motion to

dismiss. While granting a motion to dismiss is a final judgment, an order denying dismissal is not.

We therefore lack jurisdiction to address defendants’ exhaustion challenge.




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No. 08-3037
Wright v. Leis


        In contrast to the district court’s exhaustion order, its denial of qualified immunity, while not

a final order, presents an appealable issue. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The

Supreme Court recently reaffirmed that, “[p]rovided it ‘turns on an issue of law,’” “[a] district court

decision denying a Government officer’s claim of qualified immunity can fall within the narrow

class of appealable orders despite ‘the absence of a final judgment.’” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1945–46 (2009) (quoting Mitchell, 472 U.S. at 530); see also Barnes v. Wright, 449 F.3d 709,

714 n.2 (6th Cir. 2006).


        Wright contends that the defendants do not pose a purely legal question because they rely on

disputed facts. Admittedly, the defendants’ brief references facts not supported by the amended

complaint. But the defendants concede that the panel should accept the factual aspects of the

amended complaint as true. This appeal thus presents this legal question: Does Wright’s amended

complaint withstand a motion to dismiss? See Estate of Carter v. Detroit, 408 F.3d 305, 310 (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.”) (internal

citations and quotations marks omitted); see also Ashcroft, 129 S. Ct. at 1947 (“determining whether

respondent’s complaint has the heft to state a claim is a task well within an appellate court’s core

competency.”) (internal quotation marks omitted).




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Wright v. Leis


                                                 III.


        In analyzing qualified immunity, “[t]his court has consistently held that damage claims

against government officials arising from alleged violations of constitutional rights must allege, with

particularity, facts that demonstrate what each defendant did to violate the asserted constitutional

right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (emphasis added); see also Scicluna

v. Wells, 345 F.3d 441, 445 (6th Cir. 2003) (to avoid qualified immunity dismissal, the plaintiff must

“allege[] sufficient facts, and support[] the allegations by sufficient evidence, to indicate that what

the official allegedly did was objectively unreasonable in light of the clearly established

constitutional rights.”).


        Wright’s amended complaint asserting excessive-force allegations against these county

employees withstands this court’s required scrutiny. The defendants contend that Wright fails

Lanman’s particularity requirement by “lumping” defendants Allen, Moore, Wong, Wingate, and

Wagner together with “general and conclusory allegations.” We think not. Lanman’s particularity

requirement demands only that, for each defendant, the plaintiff allege something more specific than

a general Fourth or Fourteenth Amendment claim. The complaint goes beyond generalities and

supplies details about the alleged violation. Paragraph eleven explains where and how the alleged

violation occurred:


        En route to the cell, Sergeant Moore tased Plaintiff on two occasions without
        justification. Upon reaching the cell, the Defendants Adam Wong, Michelle Moore,


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No. 08-3037
Wright v. Leis


         Douglas Allen, Chris Wingate, Robert Wagner, and John Does 1-5 physically beat
         and tased Plaintiff repeatedly.


Paragraph fourteen further relates that these defendants “unjustifiably physically assault[ed] Wright

in the Hamilton County Justice Center.” These allegations suffice to avoid dismissal at the pleading

stage.


         Two interests animate Lanman’s pleading requirement: (1) notifying defendants of the claim,

cf. Fed. R. Civ. P. 8(a) (embracing notice pleading); and (2) conserving resources by requiring the

pleading of facts sufficient to allow a qualified immunity determination at the pleading stage, see

Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986). Wright’s amended complaint

sufficiently specifies facts to satisfy both interests.


         As for whether Wright sufficiently pleaded a violation by Sheriff Leis, the defendants offer

a two sentence argument, essentially claiming that the amended complaint does not allege that “Leis

had any personal contact with Wright . . . .” That, however, misses the point. Wright asserts that

Sheriff Leis failed to train his subordinates, making it irrelevant whether Leis had physical contact

with Wright. The defendants, by failing to adequately address the issue, waive any objection to the

sufficiency of Wright’s failure-to-train claim. See Morris v. Family Dollar Stores of Ohio, Inc., No.

07-3417, 2009 WL 899894, *8 n. 11. (6th Cir. Mar. 31, 2009) (“failure to raise an argument in . . .

appellate brief constitutes a waiver of the argument on appeal.”) (quoting Radvansky v. City of

Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005)).


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Wright v. Leis


                                              IV.


       We affirm the district court’s order denying qualified immunity.




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