Tania Walters v. Prince George's County, MD, No. 10-1843 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1843 TANIA NAKYA WALTERS, Plaintiff Appellee, v. PRINCE GEORGE S COUNTY, MARYLAND; MARISSA S. DAVIS, In her Official and Individual Capacity; JAMES E. KELLY, In his Official and Individual Capacity, Defendants Appellants, and PRINCE GEORGE S COUNTY, MARYLAND POLICE DEPARTMENT; MELVIN WHITE, Chief of Police, In his Official and Individual Capacity; JANE DOE DAVIS, Officer, In her Official and Individual Capacity; JOHN DOE KELLY, Officer, In his Official and Individual Capacity; JANE AND JOHN DOES 1-25, Officers, In their Official and Individual Capacity, Defendants. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:08-cv-00711-AW) Submitted: June 21, 2011 Decided: Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Dismissed by unpublished per curiam opinion. July 13, 2011 Tonia Y. Belton-Gofreed, Associate County Attorney, Upper Marlboro, Maryland, for Appellants. Kathleen Anne Behan, BEHAN LAW, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Appellants appeal from the district court s order denying their motion for summary judgment in part, finding that Appellants were not entitled to qualified immunity on Tania Nakya Walters excessive force claims raised in her 42 U.S.C. § 1983 (2006) action, as material issues of fact existed. Walters asserted that Appellants used excessive force when they sprayed her with pepper spray and pinned her on the ground while she was handcuffed. On appeal, Appellants assert that the record conclusively shows that the force used was not excessive. Walters claims Appellants that appeal. this We court agree lacks with jurisdiction Walters and over dismiss the appeal as interlocutory. Government officials performing discretionary functions are entitled to qualified immunity from liability for civil damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 457 U.S. 800, 818 (1982). Harlow v. Fitzgerald, A defendant s assertion of qualified immunity requires consideration of two questions: (1) whether a constitutional or statutory right would have been violated on the facts alleged by the plaintiff; and (2) if so, whether the right asserted was alleged violation. clearly established at the time of the Saucier v. Katz, 533 U.S. 194, 200 (2001). 3 It is well-settled that, while interlocutory orders generally are not appealable, a district court s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 [2006] notwithstanding the absence of a final judgment. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, 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. Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Thus, we possess no jurisdiction over a claim that a plaintiff has not presented version of jurisdiction clearly enough evidence the facts over a established actually claim law to that accepting prove that the occurred, there the plaintiff s but do have was no violation facts as the of district Culosi v. Bullock, 596 F.3d 195, 201 (4th court viewed them. Cir. 2010) (quoting Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc)). Here, in denying Appellants motion for summary judgment, the district court concluded that genuine issues of material fact existed regarding Walters treatment. Although the district court did make a legal determination that there was a clearly established right to be free from excessive force, 4 Appellants do not challenge that determination, but instead attack the fact-related issues regarding whether certain actions occurred that could amount to a constitutional violation. See Iko v. Shreve, 535 F.3d 225, 237 (4th Cir. 2008) ( Because the district court denied [summary judgment] by virtue of conflicting factual inferences, . . . there is no legal issue on appeal on which we could base jurisdiction. ). As such, we lack jurisdiction over the appeal. * To avoid this conclusion, Appellants rely on Scott v. Harris, 550 U.S. 372 (2007), which held that [w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of facts for purposes of Supreme Court discredited ruling the on found a motion that, plaintiff s for summary where a version of judgment. videotape events, the The utterly district court should have relied on the facts depicted by the videotape. Id. at 380-81. * Appellants also challenge the denial of their motion for summary judgment on Walters state law claims and their assertion that a claim was not properly pled against Defendant Kelly. These claims are also interlocutory. Appellants provide no legal basis on which these claims could be reviewed prior to a final order in the case and, thus, have waived any argument that this court has jurisdiction over these claims. 5 We find Scott to be easily distinguishable from the instant case. First, the district court in this case did not credit testimony that contradicted the videotape. Appellants point to Walters testimony that she did not remove her feet from the patrol car, even though the officers can be heard on the videotape requesting that she put her feet back in the car. However, Walters lower body is not visible on the tape, and it is at least possible, viewing the evidence in the light most favorable to Walters, that Appellants were concerned that Walters was attempting to remove her feet from the car but had not succeeded or had put her feet back in the car prior to being sprayed. See Culosi, 596 F.3d at 201 (noting that district court s determination unreviewable even if that this a material court disagrees fact with exists the is district court s assessment of the evidence). Second, concluded that even Walters assuming removed that her the feet court from should the have car, the district court found that other material issues of fact existed as to whether the force applied was justified. Such a conclusion would necessarily rest on facts not present on the videotape, including the officers training, the extent of the danger Walters posed, the seriousness of Walters injuries, the relevant police guidelines, and the intent of the officers. See Iko, 535 F.3d at 239-40 (discussing factual issues arising from 6 undisputed use of pepper spray, including compliance with state regulations and training, and the relationship between the need for force and videotape is happening the amount simply not with Walters of force used). definitive lower body as or to Moreover, either exactly the what was she was how treated after she was removed from the car. Accordingly, we conclude considered that the Based on district court properly the recording. interlocutory. facts and materials legal before We the foregoing, dispense with we oral dismiss argument, contentions are adequately the and argument court the appeal because presented would not as the in the aid the decisional process. DISMISSED 7

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