Cynthia Jafary v. Justin Ward

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 28, 2023
• Docket: 22-1087
• Status: Unpublished

Opinion

USCA4 Appeal: 22-1087 Doc: 39 Filed: 02/28/2023 Pg: 1 of 4

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1087

CYNTHIA JAFARY, Plaintiff – Appellee, v. JUSTIN WARD, in his individual and official capacities; ZANE ENGLAND, in his individual and official capacities, Defendants – Appellants, and

CITY OF BECKLEY, a municipal corporation, Defendant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Joseph R. Goodwin, District Judge. (5:20-cv-00647)

Submitted: October 20, 2022 Decided: February 28, 2023

Before GREGORY, Chief Judge, and KING and QUATTLEBAUM, Circuit Judges.

Dismissed by unpublished per curiam opinion.

ON BRIEF: Philip W. Savrin, FREEMAN MATHIS & GARY, LLP, Atlanta, Georgia; Chip E. Williams, Jared C. Underwood, PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC, Beckley, West Virginia, for Appellants. J. Zak Ritchie, Max Gottlieb, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1087 Doc: 39 Filed: 02/28/2023 Pg: 2 of 4

PER CURIAM:

Plaintiff Cynthia Jafary initiated this 42 U.S.C. § 1983 civil rights action in

September 2020 in the Southern District of West Virginia against defendants Justin Ward

and Zane England, who serve as police officers for the City of Beckley. Relevant here,

Jafary alleged that, in seeking her February 2020 arrest for the West Virginia misdemeanor

offense of obstructing an officer, Ward and England effectuated a malicious prosecution

by fabricating probable cause and also retaliated against her for engaging in speech

protected by the First Amendment. In December 2021, the district court denied Ward and

England’s claims of qualified immunity, concluding that no reasonable officer in their

position could believe that there was probable cause to arrest Jafary, and that a reasonable

officer would have known that Jafary was engaging in constitutionally protected speech.

See Jafary v. Ward, No. 5:20-cv-00647 (S.D.W. Va. Dec. 28, 2021), ECF No. 134. With

a jury trial looming, Ward and England noted an interlocutory appeal — pursuant to the

collateral order doctrine — challenging the court’s denial of summary judgment on their

immunity claims. As explained below, we dismiss for lack of jurisdiction.

Generally, a denial of summary judgment is not an appealable final order under 28

U.S.C. § 1291, which authorizes appeals only from final decisions of a district court. That

principle notwithstanding, and as the Supreme Court has recognized with respect to the

collateral order doctrine, “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,” despite “the absence of a final judgment.” See Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). In a collateral order appeal, as we have explained, “an appellate

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court can . . . decide purely legal questions relating to qualified immunity.” See Witt v. W.

Va. State Police, Troop 2, 633 F.3d 272, 275 (4th Cir. 2011) (internal quotation marks

omitted). An appellate court assessing such an appeal, however, is not entitled to “reweigh

the record evidence to determine whether material factual disputes preclude summary

disposition.” Id. (internal quotation marks omitted). Accordingly, in evaluating collateral

order jurisdiction, we are obliged to “examine the parties’ appellate arguments to ensure

that we only consider those legal questions formally raised on appeal.” See Iko v. Shreve,

535 F.3d 225, 235 (4th Cir. 2008) (emphasis added).

In the circumstances presented here, we are of opinion that the collateral order

appeal pursued by Ward and England constitutes a premature challenge to the district

court’s assessment of this case. More specifically, Ward and England do not raise “purely

legal questions” in their appeal, see Iko, 535 F.3d at 235, in that their “legal arguments

hinge repeatedly, and fundamentally, on a view of the facts contrary to that reached by the

district court,” see Rhoades v. Forsyth, 834 F. App’x 793, 796 (4th Cir. 2020) (citing

Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc)). * Put most simply, because

Ward and England do not “fairly challenge the district court’s specific legal conclusions

independent of [any] factual disputes,” we are “preclud[ed] . . . from considering those

* We observe that, after Ward and England noted their appeal to this Court in January 2022, they filed, on March 8, 2022, a motion with the district court pursuant to Federal Rule of Civil Procedure 54(b). See Jafary v. Ward, No. 5:20-cv-00647 (S.D. W. Va. Mar. 8, 2022), ECF No. 139. Seeking therein a “partial reconsideration” of the court’s order that underlies this collateral order appeal, Ward and England requested the court to “correct” its recitation of the factual record. Id. at 10. Ward and England’s yet-pending motion for partial reconsideration supports the proposition that their collateral order appeal is a premature challenge to the court’s recitation of the factual record. 3 USCA4 Appeal: 22-1087 Doc: 39 Filed: 02/28/2023 Pg: 4 of 4

legal issues over which we could appropriately exercise jurisdiction at this juncture.” Id.

at 796 (emphasis added); see also Johnson v. Jones, 515 U.S. 304, 314 (1995) (recognizing

jurisdictional defect in collateral order appeal from denial of qualified immunity, when

appellate court cannot “find any . . . separate [legal] question[s]” that are “significantly

different from the fact-related legal issues that likely underlie the plaintiff’s claim on the

merits” (internal quotation marks omitted)).

Pursuant to the foregoing, we dismiss this appeal for lack of jurisdiction. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before the Court and argument would not aid the decisional

process.

DISMISSED