                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0320n.06

                                             No. 10-3630
                                                                                             FILED
                              UNITED STATES COURT OF APPEALS                             May 13, 2011
                                   FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


GERALD J. LINDSLY,                                          )
                                                            )        ON APPEAL FROM THE
        Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                            )        COURT FOR THE SOUTHERN
v.                                                          )        DISTRICT OF OHIO
                                                            )
MICHAEL WORLEY; WILLY DALID,                                )                            OPINION
                                                            )
        Defendants-Appellants.                              )



BEFORE:         COLE, and GIBBONS, Circuit Judges; and CLELAND, District Judge.*

        COLE, Circuit Judge. Defendants-Appellants Michael Worley and Willy Dalid appeal the

district court’s denial of their motion for summary judgment based on qualified immunity. On

appeal, defendants contend that no reasonable jury could believe that either defendant caused

Lindsly’s injuries and that the district court erroneously admitted an internal affairs report of the

incident. Because we lack jurisdiction to review either issue, we DISMISS the appeal.

                                                   I.

        Plaintiff-Appellee Gerald Lindsly was arrested for breaking the window of a private residence

the night of August 3, 2006. Lindsly suffers from mental illness and was experiencing a psychotic

episode at the time of the incident. Lindsly’s arresting officers, who are not parties to this case, took




        *
       The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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Lindsly v. Worley, et al

him to the Hamilton County Justice Center (“HCJC”), where he was held overnight. The next

morning, HCJC corrections officers took Lindsly to the HCJC identification section, Lincoln 14, to

be photographed and fingerprinted. The officer in charge of security for Lincoln 14, Deputy Melissa

Kilday, testified that because Lindsly was acting loud and aggressive, he was taken from Lincoln 14

to cell AH5, which holds inmates that need to be separated from others. Officers Worley, Dalid, and

Michael Lally escorted Lindsly from Lincoln 14 to cell AH5.

           Once outside of cell AH5, Lindsly and the three officers came within the view of a HCJC

security camera. Lindsly spit on the hallway floor. Dalid asked an inmate porter, Theodore Gentry,

for a towel, handed the towel to Lindsly, and instructed him to clean up the spit. The parties dispute

what happened next. Lindsly alleged that he tossed the towel in the direction of Gentry. Worley

claimed that Lindsly threw the towel at him, but Gentry testified that Lindsly threw the towel at the

ceiling.

           Lindsly alleged that defendants next “instantly converged” on him, and “applied physical

force . . . including chokes, kicks, blows and knee strikes, and forced him to the floor.” (Complaint,

Case No. 1:09-cv-00375, Dist. Ct. Docket No. 1, at 3.) Additionally, Lindsly alleged that Worley

or Dalid, or both, administered a knee strike directly to his face. (Id.) Gentry testified that all three

officers attacked Lindsly and were “beating him up . . . pretty bad.” (Gentry Dep., Case No. 1:07-cv-

00588, Dist. Ct. Docket No. 28 Ex. 4, at 16, 28-29.) Both Worley and Dalid denied that they forced

Lindsly to the ground or intentionally struck him. The security camera footage does not fully capture

the incident because for a period of time Lindsly is not visible on camera—partly because Lindsly

is no longer within the camera’s view and partly because, even once he returns within the camera’s

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Lindsly v. Worley, et al

scope, the officers’ bodies obstruct the camera’s view.

        Immediately after the incident, Gentry observed visible injuries to Lindsly’s face, including

bleeding and swelling. Lindsly was taken to the hospital by HCJC staff a few hours later. At the

hospital, Dr. Kevin Joseph performed a CAT scan on Lindsly and determined that Lindsly had four

fractures in his right eye, a nasal fracture, and a mild corneal abrasion. Several days after the

incident the Hamilton County Sheriff’s Office of Internal Affairs conducted an investigation of the

incident and concluded that Worley and Dalid used excessive force against Lindsly and that

Lindsly’s injuries were the result of that force.

        Subsequently, Lindsly brought this action in the district court under 42 U.S.C. § 1983,

claiming defendants used excessive force against him. Defendants moved for summary judgment

on two bases: (1) that they were entitled qualified immunity; and (2) that neither Worley nor Dalid

caused Lindsly’s injuries. The district court denied defendants’ motion. The district court held that,

when viewed in the light most favorable to Lindsly, the record demonstrated that defendants used

excessive force against Lindsly and that this was a violation of Lindsly’s clearly-established

constitutional rights. Additionally, based on Gentry’s testimony, the district court found that there

was a disputed question of fact regarding the extent to which either defendant was responsible for

Lindsly’s injuries.

                                                    II.

        A.      Qualified Immunity

        We have jurisdiction to hear appeals from “final decisions of the district courts.” 28 U.S.C.

§ 1291. Under the collateral order doctrine, denials of qualified immunity constitute final orders.

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Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). “‘A defendant who is denied qualified immunity may

file an interlocutory appeal with this Court only if that appeal involves the abstract or pure legal issue

of whether the facts alleged by the plaintiff constitute a violation of clearly established law.’”

Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006) (quoting Berryman v. Rieger, 150

F.3d 561, 563 (6th Cir. 1998) (citations omitted)). But a claim “that the district court erred in finding

a genuine issue of fact for trial is not the type of legal question which we may entertain on an

interlocutory basis.” Id. at 743. “This jurisdictional limitation requires that, if ‘the defendant

disputes the plaintiff’s version of the story, the defendant must nonetheless be willing to concede the

most favorable view of the facts to the plaintiff for purposes of the appeal.’” Moldowan v. City of

Warren, 578 F.3d 351, 370 (6th Cir. 2009) (quoting Berryman, 150 F.3d at 563). However, there

is a limited exception to this jurisdictional limitation. After Scott v. Harris, 550 U.S. 372

(2007),“where the trial court’s determination that a fact is subject to reasonable dispute is blatantly

and demonstrably false, a court of appeals may say so, even on interlocutory appeal.” Moldowan,

578 F.3d at 370 (internal quotation marks omitted). We review a district court’s denial of summary

judgment on qualified immunity grounds de novo. Gregory, 444 F.3d at 742.

        Defendants’ primary argument on appeal is that neither Worley nor Dalid caused Lindsly’s

injuries. Defendants attempt to characterize this argument as a legal one by claiming that the district

court misapplied dicta in Harper v. Albert, 400 F.3d 1052 (7th Cir. 2005), and failed to engage in

the individualized assessment of each defendant’s actions as required, see Dorsey v. Barber, 517

F.3d 389, 399 n.4 (6th Cir. 2008). However, the essence of this claim is simply a reformulation of

the same factual argument repeated throughout defendants’ briefs: that when defendants’ actions are

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considered individually, the record demonstrates that neither Worley nor Dalid caused Lindsly’s

injuries. The district court addressed this argument, stating that “there [are] significant factual

questions concerning the source of Plaintiff’s injuries.” (Order, Case No. 1:09-cv-00375, Dist. Ct.

Docket No. 17, at 16.) Generally, we lack jurisdiction to revisit this determination on interlocutory

appeal. See Gregory, 444 F.3d at 743. Relying on the narrow exception to this limitation,

defendants argue that the district court’s determination that a genuine dispute existed regarding the

cause of Lindsly’s injuries is “blatantly and demonstrably false,” see Moldowan, 578 F.3d at 370

(internal quotation marks omitted), and that no reasonable jury could find that either Worley or Dalid

caused Lindsly’s injuries.

        Defendants contend that a single knee strike to Lindsly’s face was the sole cause of his

injuries and thus attempt to restrict our inquiry to which officer performed the knee strike. To

support this approach, defendants point to Gentry’s statement that he observed only one knee strike,

and that it was performed by Officer Lally. However, Lindsly’s complaint alleged that both

defendants “applied physical force [to him] including chokes, kicks, blows, and knee strikes, and

forced him to the floor,” (see Complaint, Case No. 1:09-cv-00375, Dist. Ct. Docket No. 1, at 3),

which other portions of Gentry’s testimony support. Gentry viewed the security camera video from

that morning and identified Worley and Dalid as “the attackers.” (Gentry Dep., Case No. 1:07-cv-

00588, Dist. Ct. Docket No. 28 Ex. 4, at 26-27.) He stated that both Worley and Dalid “were beating

[Lindsly] up,” “attacked him,” and “drug [sic] him in [to the cell] by his hair.” (Id. at 16, 30.) Also,

Lindsly alleged that defendants’ collective actions caused his injuries, without specifically

identifying which actions, and Lindsly’s doctor testified that it was impossible for him to determine

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Lindsly v. Worley, et al

whether Lindsly’s injuries were the result of one or multiple “blows,” (Joseph Dep., Case No. 1:07-

cv-00588, Dist. Ct. Docket No. 28 Ex. 7, at 22). Even crediting defendants’ claim that it was Officer

Lally who performed the knee strike, there is no basis to presume, as defendants do throughout their

briefs, that the knee strike alone caused Lindsly’s injuries in light of Gentry’s testimony. Therefore,

the record does not establish that the district court’s conclusion that there is a genuine dispute over

the cause of Lindsly’s injuries “is blatantly and demonstrably false.” Moldowan, 578 F.3d at 370

(internal quotation marks omitted). For that reason, the instant circumstances do not fall within the

narrow exception created by Scott v. Harris, and we lack jurisdiction to review defendants’ first

argument on appeal.

        We note, as an aside, that any argument by defendants that Lindsly’s injuries are de

minimis—and therefore do not rise to the level of a constitutional violation—misconstrues our

precedent. In so arguing, defendants rely on Leary v. Livingston County, 528 F.3d 438 (6th Cir.

2008). But as clarified at oral argument, while the degree of injury is not irrelevant, the dispositive

issue is “whether the actual or threatened force was de minimis.” Id. at 444. Defendants advance

no argument that the force alleged was de minimis.

        B.      Admissibility of the Internal Affairs Report

        Lastly, defendants contend that the district court erred in admitting the internal affairs report

under Federal Rule of Evidence 803(8) because it lacked trustworthiness. This issue does not fall

within the collateral order doctrine and therefore is reviewable on interlocutory appeal only if it is

“inextricably intertwined with an independently appealable issue.” Turi v. Main Street Adoption

Servs., 633 F.3d 496, 502 (6th Cir. 2011). “[T]he inextricably intertwined requirement is satisfied

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only if the resolution of the properly appealable issue necessarily and unavoidably decides the

non-appealable issue.” Id. (internal quotation marks omitted). Defendants do not contend that this

issue is inextricably intertwined with the denial of qualified immunity. Finding no reason that this

is so, we decline to exercise pendent jurisdiction over this issue.

                                                 III.

        For the reasons stated above, we DISMISS the appeal.




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