                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0441p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                          X
                                     Plaintiff-Appellee, -
 SCOTT E. MCKENNA,
                                                           -
                                                           -
                                                           -
                                                               No. 05-2650
             v.
                                                           ,
                                                            >
 CITY OF ROYAL OAK, a municipal corporation;               -
                                                           -
                                                           -
 OFFICER P. CLONAN, Badge No. 168; OFFICER P.

                                                           -
 EDGELL, Badge No. 208; OFFICER B. HONSOWETZ,

                                                           -
 Badge No. 173, and POLICE OFFICER JOHN DOES,

                                Defendants-Appellants. -
 jointly and severally,
                                                           -
                                                           -
                                                          N
                           Appeal from the United States District Court
                          for the Eastern District of Michigan at Detroit.
                      No. 04-74546—John Corbett O’Meara, District Judge.
                                          Argued: October 31, 2006
                                 Decided and Filed: November 28, 2006
                     Before: MOORE, ROGERS, and GIBSON, Circuit Judges.*
                                             _________________
                                                  COUNSEL
ARGUED: Joseph Nimako, CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia, Michigan,
for Appellants. David R. Parker, CHARFOOS & CHRISTENSEN, Detroit, Michigan, for Appellee.
ON BRIEF: Joseph Nimako, CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia, Michigan,
for Appellants. David R. Parker, CHARFOOS & CHRISTENSEN, Detroit, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        ROGERS, Circuit Judge. Officers Edgell and Honsowetz of the Royal Oak Police
Department bring this interlocutory appeal from the district court’s denial of summary judgment in
an action brought pursuant to 42 U.S.C. § 1983. Because the officers’ appeal of the denial of


        *
           The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.


                                                         1
No. 05-2650               McKenna v. City of Royal Oak, et al.                                                  Page 2


qualified immunity rests on disputed facts, this court does not have jurisdiction over their
interlocutory appeal.
                                                           I.
       In the early morning of March 18, 2004, Scott McKenna was suffering from a seizure in his
home in Royal Oak, Michigan. At that time, McKenna was a single father living with his three
daughters, Alexandra, Samantha, and Jessica. Alexandra, his then fourteen-year-old daughter, called
911 and told the dispatcher that she thought her father may be having a seizure or choking. Officers
Edgell and Honsowetz were dispatched to assist a man having trouble breathing. The officers
arrived before any other emergency personnel. Alexandra directed the officers to McKenna’s
bedroom, where they found McKenna lying in bed.
         The course of events after the officers entered McKenna’s bedroom is disputed. Alexandra
testified that she “couldn’t see exactly what was going on” for some period, because she was talking
to one of the officers. However, she also testified that this period was “for about a minute . . . . So
I was standing there watching it all.” According to Alexandra, the officers instructed Scott
McKenna to get out of bed and to get dressed. McKenna got up and started to pick up his pants, but
then sat back down on the bed and began to lie back down. Alexandra testified that the officers then
“picked him up by his hands, and they like pulled him up from the ground and told him to put his
pants on.” McKenna then sat back down and, according to Alexandra, “was telling them to stop.”
According to Alexandra, the officers continued to try to get McKenna out of bed while McKenna
“just laid back down.” Finally, Alexandra testified, the officers handcuffed McKenna’s wrists and
ankles, and only then did McKenna begin struggling with them.
       Contradicting the testimony offered by McKenna’s daughter, the officers said that after they
found McKenna unresponsive to verbal questioning, Officer Edgell placed his hand on McKenna’s
upper arm or shoulder to try to rouse him. Officer Edgell testified that when McKenna did rouse
he immediately became aggressive and violent, pushing them and causing Officer Honsowetz to fall
backwards. The officers asserted that it was necessary to handcuff McKenna because of his violent
behavior.
       Firefighters arrived as the officers were already restraining McKenna. Scott McKenna has
no recollection of the events that took place during his seizure.
        McKenna filed suit against the City of Royal Oak and Officers Edgell, Honsowetz, and an
Officer Clonan.1 McKenna’s complaint asserted claims of assault and battery, deprivation of civil
rights pursuant to § 1983, false arrest and imprisonment, and slander. The state law claims were
remanded to state court, leaving only the § 1983 claim before the district court.
        Before the district court, the defendants moved for summary judgment asserting that
(1) McKenna failed to establish a cause of action against the individual officers because he was not
arrested and the officers used reasonable force to restrain him; (2) the officers are entitled to
qualified immunity; and (3) the City of Royal Oak is not liable because there is no evidence that the
city’s policy was the moving force behind the alleged constitutional violations. The district court
ruled (1) that material questions of fact precluded summary judgment on the alleged Fourth
Amendment violation; (2) that disputed issues of fact precluded summary judgment on the qualified
immunity claim; and (3) that summary judgment was appropriate in favor of the City of Royal Oak
on the municipal liability claim. The defendant officers appeal the district court’s ruling denying


         1
          With the agreement of the parties, the district court dismissed the claim against Officer Clonan because he was
not personally involved in the events at issue.
No. 05-2650           McKenna v. City of Royal Oak, et al.                                       Page 3


summary judgment as to the alleged Fourth Amendment violation and the issue of qualified
immunity to this court.
                                                   II.
A. Qualified Immunity
        Because the arguments on the issue of qualified immunity presented in the officers’ brief to
this court rely exclusively on a disputed version of the facts, this court does not have jurisdiction to
consider their appeal. “It is clear ‘that 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.’” Estate of Carter v. Detroit,
408 F.3d 305, 307 (6th Cir. 2005) (quoting Johnson v. Jones, 515 U.S. 304, 319-20 (1995)).
“[D]enial of qualified immunity is an appealable final decision under 28 U.S.C. § 1291, but only ‘to
the extent that it turns on an issue of law.’” Id. at 309 (quoting Mitchell v. Forsyth, 472 U.S. 511,
530 (1985)). Therefore, “[i]n this interlocutory appeal this court may review only ‘purely’ legal
arguments.” Estate of Bing v. Whitehall, 456 F.3d 555, 563 (6th Cir. 2006) (citing Smith v. Cupp,
430 F.3d 766, 772 (6th Cir. 2005)). Here, the district court denied the officers’ Motion for Summary
Judgment on qualified immunity solely because “disputed issues of fact make summary judgment
inappropriate [on that claim].” While the officers assert that they “raise only the legal issue of
whether the facts set forth by [McKenna] constitute a violation of clearly established law,” all three
arguments advanced by the officers on the issue of qualified immunity in fact rely on their own
disputed version of the facts, not the facts as alleged by McKenna.
        First, the officers argue that McKenna was not “seized” within the meaning of the Fourth
Amendment. However, in making this argument the officers expressly rely on the contention that
McKenna “was not aware of what was happening” during the incident, and therefore could not have
his “freedom of movement restrained,” as is required to constitute seizure. While this interpretation
of the facts may be reasonable, it is contested. The officers simply ignore Alexandra McKenna’s
testimony that, before McKenna was handcuffed, while the officers were attempting to prevent him
from lying back down in bed, McKenna “was telling them to stop” in words that she could
understand. McKenna cites this evidence to show that he was aware of the restraint on his freedom
of movement and that he placed the officers on notice of the fact “that he wished to be free of their
interference.”
        Next, the officers argue that there was no constitutional violation because the officers did
not act unreasonably in restraining McKenna. Again, the officers rely exclusively on a contested
version of events to advance their position. The officers begin by noting that “when the officers
attempted to assist [McKenna], he became violent and aggressive.” However, this version of events
conflicts with the story related by both Alexandra McKenna and her sister Samantha, who said that
their father became aggressive only after the officers attempted to handcuff him.
        Finally, the officers argue that they are entitled to qualified immunity because a reasonable
officer in their position could not have known that his actions were unlawful or unreasonable.
Again, rather than advancing a legal argument based on events as viewed most favorably to
McKenna, the officers rely on their contention that they handcuffed McKenna because he first
became “uncooperative, aggressive, and combative.” This contradicts testimony favorable to
McKenna which indicated that McKenna only became aggressive and combative after being
handcuffed.
        Just as before the district court, the officers have made arguments that hinge “on the court’s
acceptance of Defendants’ version of the facts.” It may be that purely legal arguments for granting
qualified immunity relying on the facts taken in the light most favorable to McKenna could have
been advanced in this case. However, because genuine issues of material fact regarding the officers’
No. 05-2650               McKenna v. City of Royal Oak, et al.                                                    Page 4


qualified immunity claim do exist, and because the officers have in fact made no arguments
concerning the denial of qualified immunity that   do not rely on disputed facts, this court does not
have jurisdiction over this part of their appeal.2
B. Pendent § 1983 Issue
        The officers also argue that McKenna cannot satisfy the elements of a § 1983 claim because
the officers were not acting under the color of state law during the incident with McKenna. We do
not reach the merits of this argument because, having held that there is no jurisdiction to consider
the qualified immunity issues raised on appeal, we have no jurisdiction to consider this pendent
§ 1983 defense.
         The officers do not present their color of state law argument as part of their qualified
immunity defense; it is therefore properly before this court on interlocutory appeal only insofar as
it is pendent to the officers’ qualified immunity appeal. “Pendent appellate jurisdiction refers to the
exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but,
may be reviewed on interlocutory appeal if those issues are inextricably intertwined with matters
over which the appellate court properly and independently has jurisdiction.” Summers v. Leis, 368
F.3d 881, 889 (6th Cir. 2004) (citations omitted). This court has held that “jurisdiction over the
qualified immunity issue also entitles us to review whether [plaintiff] put forth a prima facie § 1983
claim.” Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). Conversely, in a case such
as this, where the court does not have jurisdiction to consider the qualified immunity issues, the
court necessarily has no jurisdiction to consider a pendent § 1983 question.
        Furthermore, if it were possible to construe the officers’ § 1983 defense as part of their
qualified immunity argument, we would still not reach the merits of this argument because it was
not properly presented to the district court. See Armstrong v. Melvindale, 432 F.3d 695, 700 n.4 (6th
Cir. 2006).
         In their Motion for Summary Judgment before the district court, the defendants stated that
the “existence of the first element [that Defendant was acting under the color of state law] is not in
dispute.” Despite this complete concession of the issue in their brief to the district court, the
defendants now assert that the issue was argued at the hearing on the summary judgment motion.
However, at the hearing, counsel for the defendants only briefly mentioned in the context of his
argument that there was no Fourth Amendment seizure that the officers “did not use their authority
granted by the City . . . to do what they did.” The district court had no reasonable basis for
recognizing that the question of whether the officers were acting under the color of state law was
before it; it is therefore not surprising that the court did not address this argument in its opinion.
Therefore, even if we had jurisdiction to do so, this court would decline to consider this question for
the first time on appeal.
                                                           III.
         The appeal is dismissed for lack of jurisdiction.




         2
          This case is not like Estate of Carter, 408 F.3d at 310, where this court found that it could “ignore the
defendant’s attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss the entire
appeal for lack of jurisdiction,” because here the officer-defendants have in fact made no legal argument for qualified
immunity which can be extracted from their reliance on disputed facts.
