Merrill v. Seagraves

2

established constitutional right, but that the second taser shot created genuine issues of fact.

Officer Seagraves appeals from the district court's partial denial of qualified immunity. Merrill also asks us to exercise pendent jurisdiction to hear a cross-claim, where he asserts that the district court erred in partially granting Seagraves's motion for qualified immunity. But because Seagraves's appeal turns on disputes of fact rather than an issue of law, it does not fall within our limited interlocutory jurisdiction to review denials of qualified immunity. And because there is no jurisdiction for Seagraves's appeal and Merrill failed to adequately raise pendent jurisdiction in his opening brief, we decline to extend pendent jurisdiction to his cross-appeal. We DISMISS both Seagraves's appeal and Merrill's cross-appeal for lack of jurisdiction.

I. Background

Seagraves pulled Merrill over due to an expired tag and a malfunctioning brake light around 2 pm on December 3rd, 2020. Seagraves requested that Merrill fully roll down the car window so that Merrill could sign a citation, but Merrill refused. Seagraves returned to his vehicle to contact Officer Fell for backup because he intended to remove Merrill from his vehicle. After waiting in his vehicle for about ten minutes, Merrill drove away "at a normal speed." App., Vol 2 at 55. Lights and sirens flashing, Seagraves and Fell pursued Merrill.

Merrill drove two miles and arrived at his stepbrother's house. Once he ran onto the porch, Merrill claims that he faced the officers with a phone in one hand and both Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 2

3

arms raised. The officers pointed their firearms at Merrill and gave him instructions, but Merrill could not hear the instructions over his own yelling. Seagraves then shot Merrill with a taser. From his experience and training, Seagraves believed that taser immobilization would last five seconds.

The officers turned Merrill face-down on the ground, and each officer held one of his arms. Merrill's body "tensed up" but was not "twisting or pushing." App., Vol. 1 at 113. Merrill did not comply with the officers' attempts to handcuff him. Seagraves then tased Merrill a second time, fifteen seconds after the first shot. Following the second shot, the officers were able to control Merrill's arms to handcuff him. Merrill claims that the officers did not warn him before the second taser shot, and that even if they did warn him, he did not have control of his body or time to comply between the two taser shots.

Merrill sued Seagraves, Fell, Police Chief Berryhill, and the City of Broken Arrow under 42 U.S.C. § 1983. Defendants filed summary judgment motions, and the court dismissed the suits against Berryhill and Fell. The court allowed the action against the City for its alleged failure to train officers. The appeal before us concerns the district court's partial denial of Seagraves's summary judgment motion seeking qualified immunity for Merrill's Fourth Amendment excessive force claims. The court granted qualified immunity for the first taser shot but denied qualified immunity for the second. The court found a genuine dispute for the second shot because it is unclear whether Merrill was subdued or able to respond to a warning, if a warning Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 3

4

was given. On appeal, Seagraves argues that the court erred in denying qualified immunity for the second shot. Merrill cross-appealed contending that the court erred in granting Seagraves qualified immunity for the first taser shot.

II. Discussion a. Jurisdiction for Seagraves's Appeal Our interlocutory jurisdiction over denials of qualified immunity is limited. We only have "jurisdiction over denials of qualified immunity at the summary judgment stage to the extent that they 'turn on an issue of law.'" Fogarty v. Gallegos,

523 F.3d 1147, 1153 (10th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 (1985)). "Under this limited jurisdiction, we may review: '(1) whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation, or (2) whether that law was clearly established at the time of the alleged violation.'" Est. of Booker v. Gomez, 745 F.3d 405, 409 (10th Cir. 2014) (quoting Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013)). We cannot review "a district court's factual conclusions, such as the existence of a genuine issue of material fact for a jury to decide, or that a plaintiff's evidence is sufficient to support a particular factual inference" at this stage. Fogarty, 523 F.3d at 1154. Allowing such appeals would not advance qualified immunity doctrine goals in a "sufficiently weighty" way so as to overcome the accompanying expense and delay. Ralston v. Cannon, 884 F.3d 1060, 1067-68 (10th Cir. 2018) (citing Johnson v. Jones, 515 U.S. 304, 315-17 (1995)).

Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 4

5

A party cannot manufacture jurisdiction by framing a purely factual appeal as a legal one. When a party "'nominally frames [an] argument as a legal issue' but actually challenges 'the facts the district court concluded a reasonable jury could infer based upon the evidence in the summary judgment record,'" we still lack jurisdiction over the appeal. Coones v. Bd. of Cnty. Comm'rs of Unified Gov't of Wyandotte Cnty./Kan. City, 166 F.4th 1, 16 (10th Cir. 2026) (quoting Fancher v. Barrientos, 723 F.3d 1191, 1199-1200 (10th Cir. 2013)). "[I]f a district court concludes that a reasonable jury could find certain specified facts in favor of the plaintiff, the Supreme Court has indicated we usually must take them as true—and do so even if our own de novo review of the record might suggest otherwise as a matter of law." Est. of Booker v. Gomez, 745 F.3d 405, 409-10 (10th Cir. 2014) (citing Roosevelt-Hennix, 717 F.3d at 753).

Whether a plaintiff is effectively subdued is a factual rather than a legal inquiry. This court has said that a plaintiff is "subdued" if a reasonable officer has

"enough time to recognize [that the individual no longer poses a threat] and react[s] to the changed circumstances." McCoy v. Meyers, 887 F.3d 1034, 1048 (10th Cir. 2018). The extent to which a plaintiff poses a threat is a question of fact. English v. City of Gainesville, 75 F.4th 1151, 1156 (11th Cir. 2023) ("The dispute is whether [the plaintiff]—in fact—posed a danger when the shooting occurred. In other words, the only issues in this appeal concern what happened at the scene. Those are questions of fact, not law."); see also Perea v. Baca, 817 F.3d 1198, 1204 n. 3 (10th Cir. 2016) ("Baca and Jaramillo argue that the district court erred in finding Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 5

6

that Perea was effectively subdued. We do not have jurisdiction to 'reevaluate the district court's conclusion that the . . . record is sufficient to prove' that he was subdued.") (quoting Al-Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014)); Kalbaugh v. Jones, 807 F. App'x. 826, 830 (10th Cir. 2020) (unpublished) ("Defendants are free to argue to a jury that Plaintiff was not subdued, but this disputed issue of material fact precludes summary judgment."). Seagraves contends that the question of whether Merrill was subdued is a matter of law that can be reviewed by this court in an interlocutory appeal. Oral Argument at 20:55-21:07. But he offers no authority to that end where questions exist as to the underlying material facts. And whether Merrill was subdued "is just the sort of nebulous factual assessment that Johnson leaves to the district courts."

Shinault v. Cleveland Cnty. Bd. of Cnty. Comm'rs, 82 F.3d 367, 370 (10th Cir. 1996). Whether Merrill was subdued depends on if a reasonable officer would have perceived him as a threat, which is a question of fact. McCoy v. Meyers, 887 F.3d 1034, 1048 (10th Cir. 2018); English, 75 F.4th at 1156. And we have already said that we will not reconsider a district court's finding that a reasonable jury could determine a plaintiff was subdued. Perea, 817 F.3d at 1204 n. 3. Seagraves "nominally framed" his appeal as legal by incorrectly claiming that whether a plaintiff is subdued is a question of law. Fancher v. Barrientos, 723 F.3d 1191, 1199-1200 (10th Cir. 2013); Oral Argument at 20:55-21:07. Absent this framing, Seagraves's appeal merely "dispute[s] the facts a district court determine[d] a reasonable juror could find[.]" Ralston, 884 F.3d at 1067. As in English, "this Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 6

7

appeal does not raise questions about whether certain undisputed conduct violated the Fourth Amendment or whether the law was clearly established." 75 F.4th at 1156. Seagraves only contests what he believes to be the district court's "legal conclusion"

that Merrill was subdued. Oral Argument at 8:40-8:55. But he was incorrect that the court made a legal conclusion of that nature.

In sum, we cannot hear Seagraves's interlocutory appeal because it does not turn on a question of law. Fogarty, 523 F.3d at 1153.

b. Jurisdiction for Merrill's Cross-Appeal

Pendent appellate jurisdiction allows us to exercise jurisdiction over an

"otherwise nonfinal and nonappealable lower court decision that overlaps with an appealable decision." Cox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995). It is a discretionary doctrine. Id. But review of a pendent claim is "only appropriate" when certain conditions are met regarding the relationship between the pendent claim and the properly appealable claim. Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019) (quoting Tarrant Reg'l Water Dist. v. Sevenoaks, 545 F.3d 906, 915 (10th Cir.

2008)).

For this reason, we cannot exercise pendent appellate jurisdiction without a properly appealable "hook." Shinault, 82 F.3d at 370 (quoting Mitchell, 472 U.S. at

530). "Pendent appellate jurisdiction requires at least one appealable order." Vivos Therapeutics v. Ortho-Tain, Inc., 142 F.4th 1262, 1269 (10th Cir. 2025) (citing Vondrak v. City of Las Cruces, 535 F.3d 1198, 1205 (10th Cir. 2008) ("This court Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 7

8

has discretion to exercise pendent appellate jurisdiction over nonappealable issues once we have asserted jurisdiction over other appealable issues in the same case."); Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3937 at 822 (3d ed. 2012) ("The starting point in measuring pendent appellate jurisdiction is simple. There must be an independently appealable order that establishes court of appeals jurisdiction.").

Here, because we are dismissing Seagraves's appeal for lack of jurisdiction, there is no primary appealable "hook" for Merrill's cross-appeal. Shinault, 82 F.3d at 370. There cannot be pendent jurisdiction for Merrill's cross-appeal because there is no properly appealable claim before the court. Vivos Therapeutics, 142 F.4th at 1269-70 (finding that lack of jurisdiction under the collateral-order doctrine stopped us from extending pendent jurisdiction to other interlocutory rulings); Shinault, 82 F.3d at 370-71 (finding that there could not be pendent jurisdiction because we did not have jurisdiction to review the denial of qualified immunity); Scannell Props. #516 v. City of Edwardsville, 185 F.4th 1084, 1093 (10th Cir. 2026) ("[W]e can't exercise pendent appellate jurisdiction when the underlying appeal is moot.").

Even if we had not dismissed Seagraves's appeal for lack of jurisdiction, we still would not exercise pendent jurisdiction over Merrill's cross-appeal because Merrill failed to properly raise pendent jurisdiction in his opening brief. "Every appellant bears the burden of proving appellate jurisdiction by demonstrating the finality of the challenged decision or identifying a specific grant of jurisdiction."

Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 8

9

Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, 968 F.3d 1156, 1164 (10th Cir. 2020). "Ordinarily, a party's failure to address an issue in its opening brief results in that issue being deemed waived." United States v. Walker, 918 F.3d 1134, 1151 (10th Cir. 2019). "This briefing-waiver rule applies equally to arguments that are 'inadequately presented' in an opening brief." Id. (quoting Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007)). A party's failure to adequately address an issue in its opening brief, despite discussing the issue in a reply, can result in waiver. Walker 918 F.3d at 1153.

Here, Merrill's opening brief addressed pendent jurisdiction in a brief, conclusory manner. Merrill stated that his cross-appeal is "from the grant of qualified immunity to Officer Seagraves for the first taser shot and is subject to the request to extend pendent jurisdiction as discussed in more detail below." 1st Cx-App. Br. at 5. But the opening brief failed to further discuss jurisdiction. Thus, pendent jurisdiction was waived. Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019) (finding inadequate support for a pendent jurisdiction claim when the "entire argument on this threshold matter consists of a single conclusory sentence"). See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) ("[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief."); see also United States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) ("[A]rguments raised for the first time in a reply brief are generally deemed waived.").

Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 9

10

III. Conclusion

We lack jurisdiction for Seagraves's appeal because it does not turn on an issue of law. Further, there is no jurisdiction for Merrill's cross-appeal because it has no appealable hook, and even so, Merrill waived pendent jurisdiction through improper briefing.

We therefore dismiss Seagraves's appeal and Merrill's cross-appeal for lack of jurisdiction.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

Appellate Case: 25-7060 Document: 55-1 Date Filed: 10/27/2026 Page: 10