24-3186 Vann v. City of Rochester
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 4th day of November, two thousand twenty-five.
4 PRESENT:
5 DENNY CHIN, 6 RICHARD J. SULLIVAN, 7 BETH ROBINSON, 8 Circuit Judges. 9 _____________________________________
10 DAVID VANN,
11 Plaintiff-Appellee,
12 v. No. 24-3186
13 CITY OF ROCHESTER, a municipal 14 entity, POLICE OFFICER MATTHEW DRAKE, 15 IBM #1956, POLICE OFFICER STEVEN 16 MITCHELL, IBM #2134, 1 Defendants-Appellants. 2 3 INVESTIGATOR JEFFREY KESTER, IBM 4 #2230, POLICE OFFICER CHRISTOPHER J. 5 BARBER, IBM #1949, POLICE OFFICER DAVID 6 E. KEPHART, IBM #2074, INVESTIGATOR 7 TOMESHA ANGELO, IBM #1665, TECHNICIAN 8 STEPHANIE MINTZ, IBM #2496, SERGEANT 9 DANIEL J. ZIMMERMAN, IBM #295, POLICE 10 OFFICERS “JOHN DOES 1-6” (whose names are 11 currently unknown, but who are described 12 in the complaint and in pictures attached to 13 the complaint as exhibits), POLICE OFFICERS 14 “JOHN DOES 7-12” (names and number of 15 whom are unknown at present), and other 16 unidentified members of the Rochester 17 Police Department, SERGEANT JEFFREY 18 LAFAVE II, IBM #1634, POLICE OFFICER ADAM 19 BRODSKY, IBM #2478, POLICE OFFICER 20 TIMOTHY DEMPSEY, IBM 21 #2122, INVESTIGATOR CHRISTOPHER 22 MUSCATO, IBM #1331, CAPTAIN GARY 23 MOXLEY, POLICE OFFICER ANGEL PAGAN, 24 IBM #2421, POLICE OFFICER ERIC MCGRAW, 25 IBM #2131, SERGEANT JOSEPH LAIOSA, IBM 26 #1180, COUNTY OF MONROE, SANDRA 27 DOORLEY, individually and as District 28 Attorney of the County of 29 Monroe, MICHAEL HARRIGAN, as an 30 employee of the Monroe County District 31 Attorney's Office and individually, POLICE 32 OFFICERS “JOHN DOES 1-10” (whose names 33 are currently unknown), and other 34 unidentified members of the Rochester 35 Police Department, 36
2 1 Defendants. * 2 _____________________________________
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.
3 Appeal from an order of the United States District Court for the Western
4 District of New York (Elizabeth A. Wolford, Chief Judge).
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
6 ADJUDGED, AND DECREED that the appeal is DISMISSED.
7 The City of Rochester and two of its police officers, Matthew Drake and
8 Steven Mitchell (together, “Appellants”), appeal from the district court’s partial
9 grant of summary judgment to Plaintiff David Vann on his claims that the officers
10 used excessive force in violation of the Fourth Amendment when arresting him in
11 September 2015. On appeal, Appellants contend that the district court failed to
12 (1) address the officers’ qualified-immunity defense, and (2) apply the proper
13 standard in evaluating Vann’s excessive-force claims pursuant to the Supreme
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
3 1 Court’s decision in Graham v. Connor, 490 U.S. 386 (1989). We assume the parties’
2 familiarity with the underlying facts, procedural history, and issues on appeal, to
3 which we refer only as needed to explain our decision.
4 Under 28 U.S.C. § 1291, this Court “has appellate jurisdiction over only final
5 decisions of district courts,” Sahu v. Union Carbide Corp., 475 F.3d 465, 467 (2d Cir.
6 2007), which “end[] the litigation on the merits and leave[] nothing for the court to
7 do but execute the judgment,” Acha v. Beame, 570 F.2d 57, 62 (2d Cir. 1978) (internal
8 quotation marks omitted). An order “denying summary judgment or granting
9 partial summary judgment cannot by itself form the basis of an appeal because it
10 is nonfinal.” LaTrieste Rest. & Cabaret, Inc. v. Village of Port Chester, 96 F.3d 598,
11 599 (2d Cir. 1996).
12 That is the case here. The district court’s order did not resolve all of Vann’s
13 excessive-force claims against Drake and Mitchell, let alone the claims against the
14 other Defendants in this case. For example, the court concluded that Mitchell
15 used excessive force on four discrete occasions, but found that “genuine issues of
16 material fact exist[ed] with respect to [Vann’s] claims that Mitchell otherwise used
17 excessive force.” App’x at 718; see also id. at 719 (determining that resolution “of
4 1 [Vann’s] excessive force claim against [Defendant Officer Jeffrey] Kester is
2 properly left for the trier of fact.”).
3 Appellants also failed to take steps to make the district court’s order an
4 appealable judgment. To begin, they did not move for entry of final judgment
5 under Federal Rule of Civil Procedure 54(b), which permits a district court to
6 “direct entry of a final judgment as to one or more . . . claims or parties” if “there
7 is no just reason for delay.” Fed. R. Civ. P. 54(b). Absent such a judgment, “any
8 order” that resolves “fewer than all the claims or the rights and liabilities of fewer
9 than all the parties does not end the action as to any of the claims or parties.” Id.
10 (emphases added). Nor did Appellants request or receive certification under
11 28 U.S.C. § 1292(b), which allows appeals to be taken on certain “not otherwise
12 appealable” orders that involve “controlling question[s] of law.” In short,
13 because the excessive-force claims against Drake and Mitchell – as well as Vann’s
14 claims against the other Defendants – still need to be resolved, section 1291 does
15 not grant us jurisdiction over this appeal. See Petrello v. White, 533 F.3d 110, 113
16 (2d Cir. 2008) (“A final judgment or order is one that conclusively determines all
17 pending claims of all the parties to the litigation, leaving nothing for the court to
18 do but execute its decision.” (emphases added)).
5 1 To be sure, the collateral-order doctrine permits a party to appeal certain
2 nonfinal orders if they “[1] conclusively determine the disputed question,
3 [2] resolve an important issue completely separable from the merits of the action,
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24-3186 Vann v. City of Rochester
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 4th day of November, two thousand twenty-five.
4 PRESENT:
5 DENNY CHIN, 6 RICHARD J. SULLIVAN, 7 BETH ROBINSON, 8 Circuit Judges. 9 _____________________________________
10 DAVID VANN,
11 Plaintiff-Appellee,
12 v. No. 24-3186
13 CITY OF ROCHESTER, a municipal 14 entity, POLICE OFFICER MATTHEW DRAKE, 15 IBM #1956, POLICE OFFICER STEVEN 16 MITCHELL, IBM #2134, 1 Defendants-Appellants. 2 3 INVESTIGATOR JEFFREY KESTER, IBM 4 #2230, POLICE OFFICER CHRISTOPHER J. 5 BARBER, IBM #1949, POLICE OFFICER DAVID 6 E. KEPHART, IBM #2074, INVESTIGATOR 7 TOMESHA ANGELO, IBM #1665, TECHNICIAN 8 STEPHANIE MINTZ, IBM #2496, SERGEANT 9 DANIEL J. ZIMMERMAN, IBM #295, POLICE 10 OFFICERS “JOHN DOES 1-6” (whose names are 11 currently unknown, but who are described 12 in the complaint and in pictures attached to 13 the complaint as exhibits), POLICE OFFICERS 14 “JOHN DOES 7-12” (names and number of 15 whom are unknown at present), and other 16 unidentified members of the Rochester 17 Police Department, SERGEANT JEFFREY 18 LAFAVE II, IBM #1634, POLICE OFFICER ADAM 19 BRODSKY, IBM #2478, POLICE OFFICER 20 TIMOTHY DEMPSEY, IBM 21 #2122, INVESTIGATOR CHRISTOPHER 22 MUSCATO, IBM #1331, CAPTAIN GARY 23 MOXLEY, POLICE OFFICER ANGEL PAGAN, 24 IBM #2421, POLICE OFFICER ERIC MCGRAW, 25 IBM #2131, SERGEANT JOSEPH LAIOSA, IBM 26 #1180, COUNTY OF MONROE, SANDRA 27 DOORLEY, individually and as District 28 Attorney of the County of 29 Monroe, MICHAEL HARRIGAN, as an 30 employee of the Monroe County District 31 Attorney's Office and individually, POLICE 32 OFFICERS “JOHN DOES 1-10” (whose names 33 are currently unknown), and other 34 unidentified members of the Rochester 35 Police Department, 36
2 1 Defendants. * 2 _____________________________________
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.
3 Appeal from an order of the United States District Court for the Western
4 District of New York (Elizabeth A. Wolford, Chief Judge).
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
6 ADJUDGED, AND DECREED that the appeal is DISMISSED.
7 The City of Rochester and two of its police officers, Matthew Drake and
8 Steven Mitchell (together, “Appellants”), appeal from the district court’s partial
9 grant of summary judgment to Plaintiff David Vann on his claims that the officers
10 used excessive force in violation of the Fourth Amendment when arresting him in
11 September 2015. On appeal, Appellants contend that the district court failed to
12 (1) address the officers’ qualified-immunity defense, and (2) apply the proper
13 standard in evaluating Vann’s excessive-force claims pursuant to the Supreme
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
3 1 Court’s decision in Graham v. Connor, 490 U.S. 386 (1989). We assume the parties’
2 familiarity with the underlying facts, procedural history, and issues on appeal, to
3 which we refer only as needed to explain our decision.
4 Under 28 U.S.C. § 1291, this Court “has appellate jurisdiction over only final
5 decisions of district courts,” Sahu v. Union Carbide Corp., 475 F.3d 465, 467 (2d Cir.
6 2007), which “end[] the litigation on the merits and leave[] nothing for the court to
7 do but execute the judgment,” Acha v. Beame, 570 F.2d 57, 62 (2d Cir. 1978) (internal
8 quotation marks omitted). An order “denying summary judgment or granting
9 partial summary judgment cannot by itself form the basis of an appeal because it
10 is nonfinal.” LaTrieste Rest. & Cabaret, Inc. v. Village of Port Chester, 96 F.3d 598,
11 599 (2d Cir. 1996).
12 That is the case here. The district court’s order did not resolve all of Vann’s
13 excessive-force claims against Drake and Mitchell, let alone the claims against the
14 other Defendants in this case. For example, the court concluded that Mitchell
15 used excessive force on four discrete occasions, but found that “genuine issues of
16 material fact exist[ed] with respect to [Vann’s] claims that Mitchell otherwise used
17 excessive force.” App’x at 718; see also id. at 719 (determining that resolution “of
4 1 [Vann’s] excessive force claim against [Defendant Officer Jeffrey] Kester is
2 properly left for the trier of fact.”).
3 Appellants also failed to take steps to make the district court’s order an
4 appealable judgment. To begin, they did not move for entry of final judgment
5 under Federal Rule of Civil Procedure 54(b), which permits a district court to
6 “direct entry of a final judgment as to one or more . . . claims or parties” if “there
7 is no just reason for delay.” Fed. R. Civ. P. 54(b). Absent such a judgment, “any
8 order” that resolves “fewer than all the claims or the rights and liabilities of fewer
9 than all the parties does not end the action as to any of the claims or parties.” Id.
10 (emphases added). Nor did Appellants request or receive certification under
11 28 U.S.C. § 1292(b), which allows appeals to be taken on certain “not otherwise
12 appealable” orders that involve “controlling question[s] of law.” In short,
13 because the excessive-force claims against Drake and Mitchell – as well as Vann’s
14 claims against the other Defendants – still need to be resolved, section 1291 does
15 not grant us jurisdiction over this appeal. See Petrello v. White, 533 F.3d 110, 113
16 (2d Cir. 2008) (“A final judgment or order is one that conclusively determines all
17 pending claims of all the parties to the litigation, leaving nothing for the court to
18 do but execute its decision.” (emphases added)).
5 1 To be sure, the collateral-order doctrine permits a party to appeal certain
2 nonfinal orders if they “[1] conclusively determine the disputed question,
3 [2] resolve an important issue completely separable from the merits of the action,
4 and [3] [would] be effectively unreviewable on appeal from a final judgment.”
5 Locurto v. Safir, 264 F.3d 154, 162 (2d Cir. 2001) (first and second alterations rejected
6 and internal quotation marks omitted). Under this “limited exception,” Grune v.
7 Rodriguez, 176 F.3d 27, 32 (2d Cir. 1999) (internal quotation marks omitted), we
8 may review an order denying a claim of officer immunity “to the extent that [the
9 appeal] turns on an issue of law,” Franco v. Gunsalus, 972 F.3d 170, 174 (2d Cir.
10 2020) (internal quotation marks omitted); see also Johnson v. Jones, 515 U.S. 304, 309
11 (1995) (underscoring that “interlocutory appeals – appeals before the end of
12 district court proceedings – are the exception, not the rule”). But our caselaw is
13 clear that we “lack jurisdiction over interlocutory appeals” where “resolution of
14 the immunity defense depends upon disputed factual issues.” Jok v. City of
15 Burlington, 96 F.4th 291, 295 (2d Cir. 2024) (internal quotation marks omitted).
16 Thus, if a “district court denies qualified immunity because of a dispute over
17 material facts,” an appellant may invoke appellate jurisdiction on an interlocutory
18 basis only by “establish[ing] one of the following: (1) that the parties have agreed
6 1 to stipulated facts, (2) that the appellant has agreed to facts that the plaintiff alleges
2 are true, or (3) that the appellant has agreed to facts favorable to the plaintiff that
3 the trial judge concluded the jury might find.” Id. (internal quotation marks
4 omitted).
5 Appellants have made none of those showings. Rather than accepting
6 Vann’s version of the facts or agreeing to stipulated facts, Appellants insist that
7 disputed material facts preclude summary judgment, contest the district court’s
8 account of the circumstances surrounding Vann’s arrest, and contend that the
9 “interactions between the Officers and [Vann] should be” decided “by a potential
10 jury at trial.” City Br. at 16; see also id. at 4, 10–12, 22. To take one example, in
11 defending Mitchell’s decision to use a “distractionary jab” – that is, to punch Vann
12 – Appellants characterize Vann as “a threat to the officers” and as “reaching for
13 his waistband.” Id. at 14. But the district court explained that the
14 “incontrovertible surveillance video” demonstrated that Vann was “neither
15 actively resisting” nor “reaching for his waistband” when Mitchell punched him.
16 App’x at 714 (internal quotation marks omitted); see also Dist. Ct. Doc. No. 134-6,
17 Ex. 8 at 6:47–6:55; Scott v. Harris, 550 U.S. 372, 380–81 (2007) (instructing courts to
7 1 view “the facts in the light depicted by the videotape” when one party’s “version
2 of events is so utterly discredited by the record”).
3 In sum, Appellants’ “arguments on appeal depend entirely on [their]
4 version[] of contested facts,” and they do “not accept, even for the limited
5 purposes of pursuing this appeal, [Vann’s] version of the facts, or any set of
6 stipulated facts.” Jok, 96 F.4th at 297–98 (internal quotation marks omitted).
7 And because they do not present “issue[s] of law,” id. at 295 (emphasis and internal
8 quotation marks omitted), or seek to vindicate a “claim of right not to stand trial
9 on [Vann’s] allegations,” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985) (emphasis
10 omitted), the district court’s grant of partial summary judgment to Vann is not an
11 appealable collateral order. We therefore lack jurisdiction to consider it. See In
12 re State Police Litig., 88 F.3d 111, 124–25 (2d Cir. 1996).
13 * * *
14 We have considered Appellants’ remaining arguments and find them to be
15 without merit. Accordingly, we DISMISS the appeal for lack of jurisdiction. 1
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk of Court
1 Because we dismiss the entire appeal for lack of jurisdiction, we do not address the City’s standing to participate.