                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0096n.06

                                         Case No. 13-3531                          FILED
                                                                              Feb 04, 2014
                             UNITED STATES COURT OF APPEALS               DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT


RICHARD KOLLIN, JR., Administrator of the                )
Estate of Richard Kollin, Sr., Deceased,                 )
                                                         )
       Plaintiff-Appellee,                               )   ON APPEAL FROM THE
                                                         )   UNITED STATES DISTRICT
v.                                                       )   COURT FOR THE NORTHERN
                                                         )   DISTRICT OF OHIO
CITY OF CLEVELAND, et al.,                               )
                                                         )
       Defendants,                                       )
                                                         )                      OPINION
and                                                      )
                                                         )
SERGEANT BRIAN CARNEY,                                   )
                                                         )
       Defendant-Appellant.                              )


BEFORE:        COLE, GILMAN, and DONALD, Circuit Judges.

       COLE, Circuit Judge. Richard Kollin, Sr.’s estate sued Sergeant Brian Carney after

Kollin died of complications from a stroke he suffered just before Carney arrested him. The

district court denied Carney summary judgment based on qualified immunity, finding that a

genuine dispute of material fact existed as to whether Carney was deliberately indifferent to

Kollin’s serious medical needs.       Because the district court relied on facts not blatantly

contradicted by the record, and Carney’s sole legal argument relies on his own version of the

facts, we dismiss the appeal for lack of jurisdiction.
Case No. 13-3531
Kollin v. City of Cleveland, et al.

                                      I. BACKGROUND

       In this interlocutory appeal, where our jurisdiction is narrow, this court takes the facts as

alleged by the estate. See Estate of Carter v. City of Detroit, 408 F.3d 305, 307 (6th Cir. 2005).

Many of the following facts are disputed.

       While driving home from work in October 2009, Richard Kollin, Sr. had a stroke and

rear-ended a taxi. A Cleveland Police Department traffic-crash report indicates that the accident

occurred at 8:02 p.m. and that Officers Ranell Thompson and Alcenia Small arrived at the scene

at 8:15 p.m. Thompson and Small later testified that by the time they arrived, Kollin had been

arrested, handcuffed, and placed in the back of Carney’s squad car. Carney arrested Kollin for

driving under the influence of alcohol or drugs. Carney claims that he arrested Kollin because

Kollin smelled of alcohol and failed three field sobriety tests, purportedly witnessed by

Thompson. Thompson testified that he did not witness any field sobriety tests and, despite being

in close proximity for thirty minutes, never smelled alcohol on Kollin.

       A form referring Kollin for hospital service was filled out at 8:15 p.m. by someone

named “Alicea,” and it states that Kollin was referred because he “[could not] stand up” and was

“incoherent.” The estate argues that Carney, identified on the form by his badge number, made

the request from the accident scene to a jail employee named Alicea, who then filled out the

form. The form also indicates that the arrest occurred at 8:15 p.m.

       Thompson and Small transferred Kollin from Carney’s car to theirs and took him to

central booking. They arrived at central booking sometime between 8:30 p.m. and 8:50 p.m.

Kollin walked from Carney’s car to Thompson and Small’s car and then to central booking, but

with some difficulty. A form filled out later that evening by a hospital physician states that “per

the police officer accompanying” Kollin to the hospital, Kollin “could walk up the stairs at the


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Kollin v. City of Cleveland, et al.

police station and was talking,” but by 8:30 p.m. “he began to look to the right and he had left

hemiparesis.”

       Once at central booking, Small and Thompson brought Kollin directly to the booking

counter. The officer booking Kollin testified that he was placed in a wheelchair within five

minutes of arriving, and the officer remembered him years later because during the booking

process Kollin “never opened his mouth to speak a word.” That officer also took Kollin’s

picture, which shows Kollin sitting, gazing to the right with half-shut eyes and his left arm

dropped to the side. The estate argues that the photograph shows Kollin with a facial and left-

sided droop, which it claims is indicative of a stroke rather than intoxication. Carney and others

testified that Kollin’s appearance in the booking picture was the same as his appearance at the

accident scene. After being booked, Kollin was taken to the breathalyzer. Carney tried to give

Kollin the breathalyzer test at 9:15 p.m., but Kollin could not blow properly into the machine.

       Around 9:43 p.m., an ambulance was called for Kollin. EMS reached Kollin at 9:57 p.m.

A report filled out by the responding EMS personnel states that the caller requested EMS

because Kollin was “unresponsive” and “incoherent,” that EMS found Kollin “sitting in

wheelchair,” and that Kollin’s “history of present illness/injury” was the “past 1 hr.” EMS

observed that Kollin had a “fixed gaze,” a “facial droop,” and that his left arm was completely

paralyzed. The report’s narrative states as follows:

       Per [Cleveland Police Department]; pt was arrested for a DUI aprx 1 hour [prior
       to arrival]. Then aprx 45 min [prior to arrival] pt started having worse slurred
       speech than when arrested and started staring to his right side as in a rt side gaze
       which he continued O/S and length of entire run. Pt was ambulatory upon arrest
       and going into jail. Pt found sitting semiconscious and mental status improved at
       a steady rate for the next 10 minutes. Upon arrival at ED pt was a&oxl with
       slurred speech and facial droop. Pt initially a 0 on stroke scale then a 2 upon
       arrival at ED. Pt has left arm paralysis at all times though both legs move
       equally. . . .

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Kollin v. City of Cleveland, et al.


Thompson and Small later testified that they did not provide EMS with the information in the

narrative; Carney said he did not know whether he had provided the information to EMS.

       At the hospital, blood tests confirmed that Kollin had no alcohol or illicit drugs in his

system. Kollin died in the hospital a month and a half later from complications resulting from

the stroke.

       The estate and Kollin’s son brought various claims against Carney, the City of Cleveland,

the Cleveland Police Department, other police officers, and the medical facility and doctors who

provided Kollin with care. All defendants save Carney, the City of Cleveland, and the medical

facility were eventually dismissed. Carney and the City of Cleveland moved for summary

judgment, with Carney arguing that the doctrine of qualified immunity protects him from the

estate’s 42 U.S.C. § 1983 claims.

       The district court rejected Carney’s argument. It found genuine disputes about facts

material to the estate’s claim that Carney was deliberately indifferent to Kollin’s serious medical

needs, a violation of Kollin’s Fourteenth Amendment right to due process. First, the court noted

that Carney did not dispute that Kollin had a sufficiently serious medical need. Second, it held

that a jury could reasonably find, based on the evidence considered in the light most favorable to

the estate, that Carney was deliberately indifferent because he was aware that Kollin needed

medical assistance ninety minutes before he requested an ambulance. Finally, the court held that

the Fourteenth Amendment’s prohibition of deliberate indifference to an arrestee’s serious

medical needs was clearly established when Carney acted.

       Carney now appeals the district court’s denial of qualified immunity.




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Case No. 13-3531
Kollin v. City of Cleveland, et al.

                                          II. ANALYSIS

       Because 28 U.S.C. § 1291 grants us jurisdiction only over appeals from final district

court decisions, interlocutory appeals “are the exception, not the rule.” Johnson v. Jones, 515

U.S. 304, 309 (1995). Still, a district court’s denial of qualified immunity may be an appealable

final decision—but only “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). In this case, we lack jurisdiction to resolve anything other than pure

questions of law. Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir. 2009).

       Disputes of fact may not be appealed by a defendant denied qualified immunity.

Harrison v. Ash, 539 F.3d 510, 517 (6th Cir. 2008). We may not review “which facts a party

may, or may not, be able to prove at trial,” Johnson, 515 U.S. at 313; “whether the evidence

could support a finding that particular conduct occurred,” Berryman v. Rieger, 150 F.3d 561, 563

(6th Cir. 1998); or a district court’s determination that the summary-judgment record raised a

genuine dispute of material fact (unless that determination is “blatantly and demonstrably false”),

Moldowan, 578 F.3d at 370–71; see also Johnson, 515 U.S. at 313. In contrast, we may review

the purely legal issue of “whether the plaintiff’s facts, taken at their best, show that the defendant

violated clearly established law.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 680 (6th Cir.

2013). Put simply: “a determination that a given set of facts violates clearly established law is

reviewable, while a determination that an issue of fact is ‘genuine’ is unreviewable.” See v. City

of Elyria, 502 F.3d 484, 490 (6th Cir. 2007).

       Because we lack jurisdiction over factual issues, “a defendant must concede the most

favorable view of the facts to the plaintiff for purposes of the appeal,” Estate of Carter, 408 F.3d

at 309–10 (quoting Berryman, 150 F.3d at 563) (internal quotation marks omitted), and “limit his

argument to questions of law premised on facts taken in the light most favorable to the plaintiff,”


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Case No. 13-3531
Kollin v. City of Cleveland, et al.

Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538 (6th Cir. 2008). If a defendant does so, we

may address any remaining, purely legal arguments. See Williams v. Mehra, 186 F.3d 685, 689–

90 (6th Cir. 1999) (en banc). But if a defendant’s arguments rely on his own version of disputed

facts, we must dismiss the appeal for want of jurisdiction. McKenna v. City of Royal Oak, 469

F.3d 559, 561–62 (6th Cir. 2006). Moreover, mere conclusory statements that a defendant

construes the facts in the plaintiff’s favor cannot confer jurisdiction upon this court. Thompson

v. Grida, 656 F.3d 365, 368 (6th Cir. 2011); see also McKenna, 469 F.3d at 561.

       In deciding the purely legal issues, we “can simply take, as given, the facts that the

district court assumed when it denied summary judgment for that (purely legal) reason.”

Johnson, 515 U.S. at 319; see also Sabo v. City of Mentor, 657 F.3d 332, 336 (6th Cir. 2011)

(dismissing appeal for lack of jurisdiction because defendant’s “only argument rests on a version

of the facts that differs from the version the district court assumed”). To the extent the district

court did not identify the particular facts it deemed adequately supported, this court may review

the record “to determine what facts the district court, in the light most favorable to the

nonmoving party, likely assumed.” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (quoting

Johnson, 515 U.S. at 319) (internal quotation marks omitted).

       Carney spends most of his principal and reply briefs arguing against the estate’s version

of the facts. He disputes the time the accident occurred, the estate’s contention that Carney did

not have enough time to perform field sobriety tests and did not believe Kollin was intoxicated,

the order of events at central booking, and, most importantly, the time Carney knew Kollin

needed medical attention. Carney’s remaining argument is that the district court improperly

relied on certain evidence, including the form referring Kollin for hospital services, a printout

from the breathalyzer, and the booking photograph.


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Kollin v. City of Cleveland, et al.

          We lack jurisdiction to consider these arguments. Case law makes clear that, in this type

of appeal, we may not review such factual issues. See, e.g., Johnson, 515 U.S. at 313; Berryman,

150 F.3d at 563 (remarking that this court may not review “whether the evidence could support a

finding that particular conduct occurred” (internal quotation marks omitted)); Estate of Carter,

408 F.3d at 309–10 (noting that a defendant’s argument that the district court “erroneously

considered inadmissible evidence” is an impermissible attempt to dispute facts on appeal).

Carney replies that he is not disputing the estate’s version of the facts “per se,” but then proceeds

to do just that. He cites no case law in support of his claim that we have jurisdiction over this

appeal.

          Perhaps Carney’s best factual argument, which he never explicitly makes, is that the facts

relied on by the district court are “blatantly contradicted by the record.” See Scott v. Harris, 550

U.S. 372, 380 (2007) (holding that, on summary judgment, a court should not adopt a version of

the facts “blatantly contradicted by the record”); Moldowan, 578 F.3d at 370–71 (noting, in the

interlocutory appeal context, that this court may review a district court’s factual determination if

it is “blatantly and demonstrably false”); see also Romo v. Largen, 723 F.3d 670, 675 (6th Cir.

2013) (reasoning that, for interlocutory appeals, Scott is “limited as an exception for blatantly

contradicted facts”). This “one limited exception” to the requirement that a defendant concede

the plaintiff’s version of the facts is met only “where the evidence is so utterly discredited by the

record as to be rendered a visible fiction.” See Younes v. Pellerito, No. 13-1103, --- F.3d ----,

2014 WL 67343, at *4 (6th Cir. Jan. 9, 2014) (internal quotation marks omitted).

          Here, the district court relied on the hospital referral form to deny qualified immunity,

stating that the form “tends to suggest that Sergeant Carney (listed on the form by his badge

number) noticed that Mr. Kollin needed medical assistance approximately an hour and a half


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before an ambulance was called.” The court also noted that conflicting deposition testimony

about whether Kollin was first taken to the booking counter rather than to the breathalyzer raised

a credibility issue to be resolved by the jury. Ultimately, the district court held that “there is a

genuine issue of material fact regarding the point at which [Carney] realized that Mr. Kollin

needed urgent medical assistance.”

       These facts are not blatantly contradicted by the record. The referral form itself indicates

that it was filled out at 8:15 p.m., that Kollin was referred to a hospital because he “[could not]

stand up” and was “incoherent,” and that Carney arrested Kollin at 8:15 p.m. The EMS report

indicates that the ambulance was not called until 9:43 p.m. It is reasonable to infer from this

information, as the district court did, that Carney was aware at 8:15 p.m. that Kollin needed

medical assistance but waited until 9:43 p.m. to call for an ambulance. This is not the only

reasonable inference, but it is not an unreasonable one, and it is not blatantly contradicted by the

record. The jury ultimately may not believe the estate’s story, but because the district court did

not rely on any fact or inference “blatantly contradicted by the record”—because those facts are

not “so utterly discredited by the record as to be rendered a visible fiction”—the narrow

exception to our prohibition on reviewing factual issues does not apply.

       Carney’s only hope for jurisdiction lies in his legal argument that the facts do not show

that Carney was deliberately indifferent to Kollin’s serious medical needs. But fatal to our

jurisdiction, Carney’s argument relies on his version of the facts. See McKenna, 469 F.3d at

561–62. Carney claims that there is “no indication anywhere in the facts or evidence” that

Carney was or should have been aware that Kollin had suffered a stroke, in part because Kollin

smelled of alcohol, failed field sobriety tests witnessed by Thompson and Small, walked from

the car to central booking, raised his arms at central booking, and was not “unresponsive” during


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Kollin v. City of Cleveland, et al.

the breathalyzer test because he could walk. Carney also contends that he thought Kollin was

intoxicated, and that he immediately called for EMS once he realized Kollin needed medical

care.   But the estate disputes Carney’s allegations with other record evidence, including

Thompson’s testimony that he never smelled alcohol on Kollin nor witnessed field sobriety tests,

the fact that blood tests confirmed Kollin did not have alcohol in his system, hospital and EMS

forms indicating that Kollin’s left arm and left side of his face had been paralyzed since

8:30 p.m. or 9:00 p.m., testimony that Kollin never spoke while being processed at central

booking, and the form referring Kollin to a hospital at 8:15 p.m. because he “[could not] stand

up” and was “incoherent.” And as established above, Carney may not challenge the district

court’s determination that “there is a genuine issue of material fact regarding the point at which

[Carney] realized that Mr. Kollin needed urgent medical assistance.” See See, 502 F.3d at 490

(“[A] determination that an issue of fact is ‘genuine’ is unreviewable.”). Carney fails to premise

his legal argument on the view of the facts most favorable to the estate.

        Because Carney’s sole legal argument relies on his own version of the facts, we may not

consider it. And though a purely legal argument might have been made using the estate’s

version of the facts, Carney did not make it here. See McKenna, 469 F.3d at 562 (holding that,

despite the possibility of legal arguments relying on facts favorable to the plaintiff, the court did

not have jurisdiction “because the officers have in fact made no arguments concerning the denial

of qualified immunity that do not rely on disputed facts”). Accordingly, we do not have

jurisdiction to consider this matter.

                                        III. CONCLUSION

        We dismiss the appeal for lack of jurisdiction.




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