Vann v. City of Rochester

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Defendants-Appellants. 1

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INVESTIGATOR JEFFREY KESTER, IBM 3

#2230, POLICE OFFICER CHRISTOPHER J. 4 BARBER, IBM #1949, POLICE OFFICER DAVID 5 E. KEPHART, IBM #2074, INVESTIGATOR 6 TOMESHA ANGELO, IBM #1665, TECHNICIAN 7 STEPHANIE MINTZ, IBM #2496, SERGEANT 8 DANIEL J. ZIMMERMAN, IBM #295, POLICE 9 OFFICERS "JOHN DOES 1-6" (whose names are 10 currently unknown, but who are described 11 in the complaint and in pictures attached to 12 the complaint as exhibits), POLICE OFFICERS 13

"JOHN DOES 7-12" (names and number of 14 whom are unknown at present), and other 15 unidentified members of the Rochester 16 Police Department, SERGEANT JEFFREY 17 LAFAVE II, IBM #1634, POLICE OFFICER ADAM 18 BRODSKY, IBM #2478, POLICE OFFICER 19

TIMOTHY DEMPSEY, IBM 20

#2122, INVESTIGATOR CHRISTOPHER 21 MUSCATO, IBM #1331, CAPTAIN GARY 22

MOXLEY, POLICE OFFICER ANGEL PAGAN, 23

IBM #2421, POLICE OFFICER ERIC MCGRAW, 24 IBM #2131, SERGEANT JOSEPH LAIOSA, IBM 25 #1180, COUNTY OF MONROE, SANDRA 26 DOORLEY, individually and as District 27 Attorney of the County of 28

Monroe, MICHAEL HARRIGAN, as an 29 employee of the Monroe County District 30 Attorney's Office and individually, POLICE 31 OFFICERS "JOHN DOES 1-10" (whose names 32 are currently unknown), and other 33 unidentified members of the Rochester 34 Police Department, 35

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Defendants.^*1

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For Defendants-Appellants:

JOHN M. CAMPOLIETO, Office of the Corporation Counsel, City of Rochester, Rochester, NY.

For Plaintiff-Appellee: GRACE WALLACK (Paul W. Hughes, Andrew A. Lyons-Berg, Charles Seidell, on the brief), McDermott Will & Emery LLP, Washington, D.C.; Elliot Dolby Shields, Roth & Roth LLP, New York, NY.

Appeal from an order of the United States District Court for the Western 3 District of New York (Elizabeth A. Wolford, Chief Judge). 4

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 5

ADJUDGED, AND DECREED that the appeal is DISMISSED. 6 The City of Rochester and two of its police officers, Matthew Drake and 7 Steven Mitchell (together, "Appellants"), appeal from the district court's partial 8 grant of summary judgment to Plaintiff David Vann on his claims that the officers 9 used excessive force in violation of the Fourth Amendment when arresting him in 10 September 2015. On appeal, Appellants contend that the district court failed to 11

(1) address the officers' qualified-immunity defense, and (2) apply the proper 12 standard in evaluating Vann's excessive-force claims pursuant to the Supreme 13 * The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

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Court's decision in Graham v. Connor, 490 U.S. 386 (1989). We assume the parties' 1 familiarity with the underlying facts, procedural history, and issues on appeal, to 2 which we refer only as needed to explain our decision. 3

Under 28 U.S.C. § 1291, this Court "has appellate jurisdiction over only final 4 decisions of district courts," Sahu v. Union Carbide Corp., 475 F.3d 465, 467 (2d Cir. 5 2007), which "end[] the litigation on the merits and leave[] nothing for the court to 6 do but execute the judgment," Acha v. Beame, 570 F.2d 57, 62 (2d Cir. 1978) (internal 7 quotation marks omitted). An order "denying summary judgment or granting 8 partial summary judgment cannot by itself form the basis of an appeal because it 9 is nonfinal." LaTrieste Rest. & Cabaret, Inc. v. Village of Port Chester, 96 F.3d 598, 10 599 (2d Cir. 1996). 11

That is the case here. The district court's order did not resolve all of Vann's 12 excessive-force claims against Drake and Mitchell, let alone the claims against the 13 other Defendants in this case. For example, the court concluded that Mitchell 14 used excessive force on four discrete occasions, but found that "genuine issues of 15 material fact exist[ed] with respect to [Vann's] claims that Mitchell otherwise used 16 excessive force." App'x at 718; see also id. at 719 (determining that resolution "of 17

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[Vann's] excessive force claim against [Defendant Officer Jeffrey] Kester is 1 properly left for the trier of fact."). 2

Appellants also failed to take steps to make the district court's order an 3 appealable judgment. To begin, they did not move for entry of final judgment 4 under Federal Rule of Civil Procedure 54(b), which permits a district court to 5

"direct entry of a final judgment as to one or more . . . claims or parties" if "there 6 is no just reason for delay." Fed. R. Civ. P. 54(b). Absent such a judgment, "any 7 order" that resolves "fewer than all the claims or the rights and liabilities of fewer 8 than all the parties does not end the action as to any of the claims or parties." Id. 9 (emphases added). Nor did Appellants request or receive certification under 10

28 U.S.C. § 1292(b), which allows appeals to be taken on certain "not otherwise 11 appealable" orders that involve "controlling question[s] of law." In short, 12 because the excessive-force claims against Drake and Mitchell - as well as Vann's 13 claims against the other Defendants - still need to be resolved, section 1291 does 14 not grant us jurisdiction over this appeal. See Petrello v. White, 533 F.3d 110, 113 15 (2d Cir. 2008) ("A final judgment or order is one that conclusively determines all 16 pending claims of all the parties to the litigation, leaving nothing for the court to 17 do but execute its decision." (emphases added)). 18

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To be sure, the collateral-order doctrine permits a party to appeal certain 1 nonfinal orders if they "[1] conclusively determine the disputed question, 2

[2] resolve an important issue completely separable from the merits of the action, 3 and [3] [would] be effectively unreviewable on appeal from a final judgment." 4 Locurto v. Safir, 264 F.3d 154, 162 (2d Cir. 2001) (first and second alterations rejected 5 and internal quotation marks omitted). Under this "limited exception," Grune v. 6 Rodriguez, 176 F.3d 27, 32 (2d Cir. 1999) (internal quotation marks omitted), we 7 may review an order denying a claim of officer immunity "to the extent that [the 8 appeal] turns on an issue of law," Franco v. Gunsalus, 972 F.3d 170, 174 (2d Cir. 9 2020) (internal quotation marks omitted); see also Johnson v. Jones, 515 U.S. 304, 309 10 (1995) (underscoring that "interlocutory appeals - appeals before the end of 11 district court proceedings - are the exception, not the rule"). But our caselaw is 12 clear that we "lack jurisdiction over interlocutory appeals" where "resolution of 13 the immunity defense depends upon disputed factual issues." Jok v. City of 14 Burlington, 96 F.4th 291, 295 (2d Cir. 2024) (internal quotation marks omitted). 15 Thus, if a "district court denies qualified immunity because of a dispute over 16 material facts," an appellant may invoke appellate jurisdiction on an interlocutory 17 basis only by "establish[ing] one of the following: (1) that the parties have agreed 18

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to stipulated facts, (2) that the appellant has agreed to facts that the plaintiff alleges 1 are true, or (3) that the appellant has agreed to facts favorable to the plaintiff that 2 the trial judge concluded the jury might find." Id. (internal quotation marks 3 omitted). 4

Appellants have made none of those showings. Rather than accepting 5 Vann's version of the facts or agreeing to stipulated facts, Appellants insist that 6 disputed material facts preclude summary judgment, contest the district court's 7 account of the circumstances surrounding Vann's arrest, and contend that the 8

"interactions between the Officers and [Vann] should be" decided "by a potential 9 jury at trial." City Br. at 16; see also id. at 4, 10-12, 22. To take one example, in 10 defending Mitchell's decision to use a "distractionary jab" - that is, to punch Vann 11 - Appellants characterize Vann as "a threat to the officers" and as "reaching for 12 his waistband." Id. at 14. But the district court explained that the 13

"incontrovertible surveillance video" demonstrated that Vann was "neither 14 actively resisting" nor "reaching for his waistband" when Mitchell punched him. 15 App'x at 714 (internal quotation marks omitted); see also Dist. Ct. Doc. No. 134-6, 16 Ex. 8 at 6:47-6:55; Scott v. Harris, 550 U.S. 372, 380-81 (2007) (instructing courts to 17

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view "the facts in the light depicted by the videotape" when one party's "version 1 of events is so utterly discredited by the record"). 2

In sum, Appellants' "arguments on appeal depend entirely on [their] 3 version[] of contested facts," and they do "not accept, even for the limited 4 purposes of pursuing this appeal, [Vann's] version of the facts, or any set of 5 stipulated facts." Jok, 96 F.4th at 297-98 (internal quotation marks omitted). 6 And because they do not present "issue[s] of law," id. at 295 (emphasis and internal 7 quotation marks omitted), or seek to vindicate a "claim of right not to stand trial 8 on [Vann's] allegations," Mitchell v. Forsyth, 472 U.S. 511, 527 (1985) (emphasis 9 omitted), the district court's grant of partial summary judgment to Vann is not an 10 appealable collateral order. We therefore lack jurisdiction to consider it. See In 11 re State Police Litig., 88 F.3d 111, 124-25 (2d Cir. 1996). 12 * * * 13

We have considered Appellants' remaining arguments and find them to be 14 without merit. Accordingly, we DISMISS the appeal for lack of jurisdiction.¹15

FOR THE COURT: 16

Catherine O'Hagan Wolfe, Clerk of Court 17