                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0087n.06

                                        Case No. 17-4174

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Feb 21, 2019
 ROBERT KALVITZ,                         )                                  DEBORAH S. HUNT, Clerk
                                         )
         Plaintiff-Appellee,             )
                                         )                     ON APPEAL FROM THE UNITED
 v.                                      )                     STATES DISTRICT COURT FOR
                                         )                     THE NORTHERN DISTRICT OF
 CITY OF CLEVELAND,                      )                     OHIO
                                         )
         Defendant,                      )                              OPINION
                                         )
 CHRISTOPHER D. RANDOLPH, Cleveland )
 Police Officer, JEFFREY J. FOLLMER, )
 Cleveland Police Officer, and STEVEN W. )
 KINAS, Cleveland Police Officer.        )
                                         )
         Defendants-Appellants.          )
                                         )


BEFORE: MERRITT, GIBBONS, and NALBANDIAN, Circuit Judges.

       NALBANDIAN, Circuit Judge. Robert Kalvitz claims that the defendants, three Cleveland

police officers, “beat, struck, and kicked” him in a one-sided altercation after he was knocked to

the ground. They handcuffed him, threw him against a concrete wall, and told him he was under

arrest. All this left Kalvitz with several medical issues, including a head injury, a broken

cheekbone, and broken ribs. He responded with a suit against the officers and the city under

42 U.S.C. § 1983 for violating his Fourth Amendment rights. The officers moved for summary

judgment—asserting qualified immunity as one of their defenses. When the district court denied

the motion, they filed this interlocutory appeal. We affirm.
No. 17-4174, Kalvitz v. City of Cleveland, et al.


                                                    I.

        Almost every important fact in this case is in dispute. The parties agree that Kalvitz got

into a fight at the Zone Car Lounge in May 2014. Kalvitz, a retired police officer, was at the

Lounge for the Police Memorial Commemoration—an annual event put on by the Cleveland Police

Patrolman’s Association. For some reason, he exchanged words with an officer from Detroit,

which led to a physical altercation. Several people eventually carried him out of the bar in

handcuffs.

        Kalvitz says the verbal spar turned physical when several of the Detroit officer’s friends

“started to hit” him. Kalvitz Dec., R. 37-1, PageID 379. But he did not fight back. So when the

group attacked him, Kalvitz ended up on the floor, lying on his back. That’s when two of the three

defendants showed up. Defendants Steven Kinas and Christopher Randolph appeared and

identified themselves as Cleveland police officers. They took over the situation—but not to calm

things down. Kalvitz claims that Kinas and Randolph “beat, struck, and kicked [him] while [he]

was on the floor.” Id. Then they rolled him over and handcuffed him to place him under arrest. At

that point, Defendant Jeffrey Follmer—also a Cleveland police officer—appeared. The three

officers carried Kalvitz up the stairs, banging him into the walls as they went, and took him outside.

Once there, the officers threw Kalvitz into a concrete wall and onto the ground. He suffered several

serious injuries as a result of the assault.

        That’s, at least, how Kalvitz tells it. The officers have a much different story. Each one

claims that he was not aware of the altercation until after it happened. They were all off duty that

night and, at most, bystanders. Kinas and Follmer were outside when Kalvitz got into the fight.

They heard that someone pulled out a knife, but by the time they saw him, Kalvitz was in handcuffs

and standing outside. Randolph was restocking the bar when the fight broke out. He saw a group




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of people carrying someone—presumably Kalvitz—up the stairs. Then a bartender told him that

someone pulled out a knife. By that time, Kalvitz was outside.

       Their story might be accurate, but Kalvitz contests every detail of it. He sued the officers

under § 1983 for using excessive force in violation of his Fourth Amendment rights. After

discovery, the officers moved for summary judgment. They argued first that § 1983 does not apply

because all three officers were off duty and acting as private citizens that night. But even if they

were acting in their official capacity, they claimed protection under qualified immunity. The

district court rejected both arguments, citing the many factual disputes precluding summary

judgment. The officers then filed this interlocutory appeal, raising the same two issues for review.

                                                  II.

       We must first address our jurisdiction. Before briefing the merits, Kalvitz moved to dismiss

the appeal. He argued that the court does not have jurisdiction under Mitchell v. Forsyth, 472 U.S.

511 (1985), because the district court’s ruling denying summary judgment “turn[ed] on the facts

rather than the law.” Mtn. to Dismiss at 4. We denied the motion at that time. The court has

jurisdiction, we explained, if “the officers concede [the] operative facts alleged in Kalvitz’s sworn

declaration.” Order Denying Mtn. to Dismiss at 2. Those facts include, for example, “that

Randolph and Kinas beat, struck, and kicked [Kalvitz] while he was on the floor, and that after

handcuffing him, all three defendants threw him against a concrete wall and to the ground.” Id.

But after seeing the officers’ brief, Kalvitz raised the issue again.

       When a district court denies qualified immunity, defendants can file an immediate—but

limited—interlocutory appeal. See McKenna v. City of Royal Oak, 469 F.3d 559, 561 (6th Cir

2006). It is limited because we are not permitted to resolve fact-based challenges to the district

court’s decision. McDonald v. Flake, 814 F.3d 804, 812–13 (6th Cir. 2016). Instead, our




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jurisdiction extends only to the “neat abstract issues of law.” Berryman v. Rieger, 150 F.3d 561,

563 (6th Cir. 1998) (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)). We must accept the

sufficiency of the plaintiff’s evidence and decide whether it “would reasonably support a jury’s

finding that the defendant violated a clearly established right.” McDonald, 814 F.3d at 812.

         There is no question that the officers improperly challenge Kalvitz’s factual allegations in

their appeal. But our limited jurisdiction does not require dismissing every appeal that raises such

factual disputes. When possible, we must “separate an appellant’s reviewable challenges from its

unreviewable.” Id. at 813 (citing DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 610 (6th Cir. 2015)).

Often, the legal and factual issues in an appeal are “confused or entwined.” Id. And in those cases,

“we can ‘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.’” Id. (quoting Estate

of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)). That is possible here, where the

officers argue that, “taking the facts in the light most favorable to the plaintiff, the District Court

erred in denying the individual Defendants qualified immunity.” Appellants’ Br. at 23. We can

answer that legal question while ignoring the officers’ attempts at obfuscating the factual record

below.

                                                 III.

         Turning to the merits, the officers seek refuge under qualified immunity—but only if we

first deny their argument that they acted as private citizens during the altercation. That seems to

have it backwards in a case where our jurisdiction only exists because of the qualified-immunity

claim. So we begin with that issue.




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No. 17-4174, Kalvitz v. City of Cleveland, et al.


                                                A.

       Qualified immunity shields public officials from suit under § 1983 unless their conduct

violated clearly established constitutional rights. See District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018). To overcome it, a plaintiff must demonstrate two things. First, that the official

violated his constitutional rights. And second, that the violation was “clearly established at the

time.” Id. (internal quotation marks omitted). The effect of this two-pronged approach is that

qualified immunity protects “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

       No person could reasonably debate whether the officers violated Kalvitz’s clearly

established constitutional rights if his version of the facts turns out true. The Fourth Amendment

allows officers to use “reasonable” force when seizing an individual. See Graham v. Connor, 490

U.S. 386, 397 (1989). Figuring out whether the force crossed the constitutional line requires an

objective analysis “in light of the facts and circumstances confronting” the officer. Id. (internal

quotation marks omitted). Only objectively unreasonable force violates the Fourth Amendment.

       To that end, officers cannot use heightened levels of force against an individual who is not

resisting and poses no threat. See Phelps v. Coy, 286 F.3d 295, 301–02 (6th Cir. 2002); Lawler v.

City of Taylor, 268 F. App’x 384, 387–88 (6th Cir. 2008). That kind of “gratuitous force” lasting

“beyond the point at which any threat could have been reasonably perceived” violates the Fourth

Amendment. Lawler, 268 F. App’x at 388. And once someone has been restrained with handcuffs,

the need for force is near “nonexistent.” McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988);

see also Baker v. City of Hamilton, Ohio, 471 F.3d 601, 607 (6th Cir. 2006); Shreve v. Jessamine

Cty. Fiscal Court, 453 F.3d 681, 688 (6th Cir. 2006).




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No. 17-4174, Kalvitz v. City of Cleveland, et al.


        Kalvitz says he was lying on the ground, not fighting back, when Kinas and Randolph

“beat, struck, and kicked” him. And then after they handcuffed Kalvitz, all three officers threw

him against a concrete wall and onto the ground. It remains to be seen whether a jury believes his

account of the events. But assuming the allegations are true, which we must, no one could dispute

that the all three officers violated his constitutional rights.

        The officers make a couple of points in response, none with any merit. First, they argue

that they were justified in using force against Kalvitz because of their reasonable belief that he

posed a danger after brandishing a knife during the fight. Because the Constitution permits officers

to exercise reasonable force “in light of the totality of the circumstances,” they argue, any force

alleged by Kalvitz was necessary to disarm him and stop the altercation. Appellants’ Br. at 21

(quoting Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)).

        But that telling of the story relies on facts that appear nowhere in the record. The only

evidence that the officers believed Kalvitz brandished a knife is their testimony that they heard

about it after the altercation ended. The officers cannot rely on information they learned after the

fact to justify their earlier conduct. See Dickerson v. McClellan, 101 F.3d 1151, 1162–64 (6th Cir.

1996) (denying summary judgment in deadly force case where it was unclear what the officer

observed prior to firing his gun). So whether Kalvitz brandished a deadly weapon is immaterial

because no one testified that the officers knew about the knife before they attacked him.1

        Along the same lines, the officers argue that they could use force against Kalvitz because

he resisted arrest. This claim fares worse than the first because Kalvitz directly contradicts it in his


1
  Even if Kalvitz brandished a knife during the fight, it would not justify the kind of force described
in his declaration. Officers cannot continue to strike an individual who has been subdued on the
ground. See Shreve, 453 F.3d at 686–87. And they certainly cannot use heightened force against
that person once they have placed him in handcuffs. McDowell, 863 F.2d at 1307. That remains
true even if the officers believed he had a deadly weapon before neutralizing him.


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No. 17-4174, Kalvitz v. City of Cleveland, et al.


affidavit. Kalvitz stated that he did not fight back during the altercation. That ends the inquiry for

us here because we do not have jurisdiction to determine whether the officers are entitled to

qualified immunity under a different version of the facts. Kalvitz says he did not fight back, and

the officers have not provided any evidence to demonstrate that his story is “blatantly contradicted

by the record, so that no reasonable jury could believe it.” McDonald, 814 F.3d at 812 (quoting

Scott v. Harris, 550 U.S. 372, 380 (2007)). For that reason, we need not address whether the

officers would have been justified in beating, kicking, and striking Kalvitz if he had resisted.

        The officers also argue that Kalvitz does not sufficiently identify which individual

defendants took what unlawful action. While they are correct that “[e]ach defendant’s liability

must be assessed individually,” Dorsey v. Barber, 517 F.3d 389, 399 n.4 (6th Cir. 2008), Kalvitz

does more than enough to meet this requirement. He alleges that two officers—Kinas and

Randolph—beat, kicked, and struck him. And he alleges that all three officers threw him against

a concrete wall and onto the ground. Those allegations satisfy any requirement that Kalvitz

particularize the basis of liability for each officer.

        Finally, at oral argument the officers’ counsel appeared to concede the excessive-force

issue in favor of an argument that the officers did not violate Kalvitz’s constitutional rights by

handcuffing him after the fight or by searching him incident to the seizure. Counsel asked us to

analyze this case in a piecemeal fashion, as we sometimes do, by segmenting the allegations into

three separate constitutional issues: (1) placing Kalvitz in handcuffs; (2) searching him incident to

the seizure; and (3) using excessive force. The first two, counsel argued, were plainly permitted

under the Constitution because he was involved in an altercation that the officers needed to stop.

Counsel urged the court to at least find qualified immunity for those first two claims.




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No. 17-4174, Kalvitz v. City of Cleveland, et al.


       But the officers waived that argument when they failed to include it in their brief. See

Campbell v. Stamper, 244 F. App’x 629, 633 (6th Cir. 2007) (citing United States v. Graham,

484 F.3d 413, 418 (6th Cir. 2007)). The only qualified-immunity argument in the officers’ brief is

that they were entitled to use reasonable force to restrain him based on their belief that Kalvitz

posed a danger. They included several reasons to justify their conduct, but they never segmented

the alleged use of force into different constitutional questions, nor did they ask us to do the same.

They did not argue, for example, that handcuffing Kalvitz was justified even if kicking, beating,

and striking him was not. And they never raised the issue of whether they had the legal right to

search his belongings. Those arguments were simply not raised in the brief, and so we decline to

address them now.

                                                  B.

       The officers also argue that the district court should be reversed because they were off duty

that night, not acting as public officials. To prevail on his § 1983 claim, Kalvitz must prove that

the officers were acting under color of state law. Waters v. City of Morristown, Tenn., 242 F.3d

353, 358–59 (6th Cir. 2001) (citing Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994)).

As private citizens, they say, they cannot be liable under § 1983.

       This issue is unrelated to qualified immunity, so Kalvitz argues that we lack jurisdiction to

address it. But we have previously held that, so long as the court has jurisdiction over the qualified-

immunity appeal, our pendant jurisdiction extends to issues related to the plaintiff’s “prima facie

§ 1983 claim.” Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002). Because we have

jurisdiction over the qualified-immunity issue, we can also review whether the officers were acting

under color of state law—an element of the § 1983 claim. Id.




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No. 17-4174, Kalvitz v. City of Cleveland, et al.


       That being said, the officers’ argument lacks merit. As the district court correctly

explained, whether an official’s conduct amounts to state action under § 1983 boils down to

whether it is “fairly attributable” to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)

(internal quotation marks omitted). “Section 1983 is generally not implicated unless a state actor’s

conduct occurs in the course of performing an actual or apparent duty of his office, or unless the

conduct is such that the actor could not have behaved as he did without the authority of his office.”

Waters, 242 F.3d at 359 (citing West v. Atkins, 487 U.S. 42, 49–50 (1988)). The critical question

is “whether the actor intends to act in an official capacity or to exercise official responsibilities

pursuant to state law.” Id. And to answer that question, courts look at multiple factors, including

how the officer was dressed, whether he was on duty, whether he displayed his badge, whether he

announced himself as an officer, and whether he arrested or attempted to arrest anyone. See

Swiecicki v. Delgado, 463 F.3d 489, 496 (6th Cir. 2006), abrogated on other grounds by Wallace

v. Kato, 549 U.S. 384 (2007); Parks v. City of Columbus, 395 F.3d 643, 652 (6th Cir. 2005).

       Plenty of factual disputes stand in the way of summary judgment for the officers. Kalvitz

alleges that Kinas and Randolph announced themselves as officers, took over the situation,

handcuffed him, and placed him under arrest. Follmer joined in at some point and helped transport

the handcuffed Kalvitz outside. Kalvitz also claims that all three defendants wore holsters and

Follmer and Kinas wore their badges. These facts tend to establish that they responded in their

official capacity, not as private citizens. See Swiecicki, 463 F.3d at 496–97.

       Outside of a few conclusory allegations, the officers provide no reason to conclude

otherwise. The gist of their argument seems to be that they were not at the Lounge on official

business and never “completed a formal arrest of Kalvitz.” Appellants’ Br. at 15. Yet even the

cases the officers cite hold that such formalities do not control the analysis. See, e.g., Stengel v.




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No. 17-4174, Kalvitz v. City of Cleveland, et al.


Belcher, 522 F.2d 438, 441 (6th Cir. 1975); Mooneyhan v. Hawkins, 129 F.3d 1264, 1997 WL

685423, at *4 (6th Cir. Oct. 29, 1997) (unpublished). If the officers wore their badges, announced

themselves as police, and used their handcuffs to restrain and transport Kalvitz, that satisfies the

state-action requirement under § 1983. Of course, whether those facts turn out to be true is for the

jury to sort out. See Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980). For now, we can simply

affirm the district court’s decision and send this question back down for trial.

                                                IV.

       Finding no error in the district court’s decision below, we turn to Kalvitz’s request for

sanctions. He asks us to sanction the officers for filing a frivolous appeal. It’s frivolous, Kalvitz

argues, because the officers failed to confine their qualified-immunity argument to the facts viewed

in a light favoring him.

       We have wide discretion to determine whether a party should be sanctioned for filing a

frivolous appeal. Burlington N. R. Co. v. Woods, 480 U.S. 1, 4 (1987). “An appeal is frivolous if

it is obviously without merit and is prosecuted for delay, harassment, or other improper purposes.”

Bridgeport Music, Inc. v. Smith, 714 F.3d 932, 944 (6th Cir. 2013) (internal quotation marks

omitted). Mindful of the unusual circumstance presented by an interlocutory qualified-immunity

appeal, we have previously sanctioned defendants who “argued the facts and evidence, in complete

disregard of the law.” McDonald, 814 F.3d at 817. Defendants cannot exploit the right to file an

interlocutory appeal solely to delay trial.

       We certainly are troubled by the decision-making of appellants’ counsel in this case. The

officers made only a minimal effort in their brief to discuss the real issue for appeal, which is

whether they violated Kalvitz’s clearly established rights by beating, kicking, and striking him on

the ground and then throwing him into a wall after being handcuffed. And when pressed at oral




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No. 17-4174, Kalvitz v. City of Cleveland, et al.


argument, counsel retreated and suggested that their position on that issue—the entire basis for

filing an interlocutory appeal—might be wrong.

       Yet not all poor advocacy should be sanctioned. Counsel for the officers made missteps,

but this case stands in contrast with the kind of frivolous appeals we have sanctioned before.

Kalvitz points to McDonald as an example of a sanctionable qualified-immunity appeal. But

McDonald differs from this case in a significant way. There, the defendant filed an interlocutory

appeal based only on “his own version of the facts and the inferences that he would draw from

them.” McDonald, 814 F.3d at 813–14. We sanctioned the defendants because they “argued the

facts and evidence, in complete disregard of the law . . . thus ensuring that they had no chance of

success.” Id. at 817. We cannot say the officers here went that far. They did argue, for example,

that “any force alleged by Kalvitz was reasonably necessary”—a clear attempt, however

misguided, at making the appropriate qualified-immunity argument. Appellants’ Br. at 22

(emphasis added). And not to be overlooked, that is precisely the argument we instructed the

officers to make when we denied Kalvitz’s motion to dismiss. Although they improperly

introduced some factual disputes into their brief, they did not—like the defendants in McDonald—

advance an entirely different version of the facts. That means something, particularly in an appeal

where we already rejected a motion to dismiss. So we deny the request for sanctions.

                                               ***

       We affirm the district court’s decision and deny the motion for sanctions.




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