Richard PARKS, Plaintiff-Appellee, v. WARREN CORRECTIONAL INSTITUTION, and Anthony Brigano, Defendants-Appellants, 51 F. App'x 137

DUGGAN, District Judge. D efendant-App ellant, Warden Anthony Brigano (“Brigano”), appeals the district court’s denial of qualified immunity in his

summary judgment motion. For the reasons set forth below, we DISMISS this appeal for lack of jurisdiction. I. Background Plaintiff-Appellee, Richard A. Parks (“Parks”), brought this action against Defendants claiming he was disciplined with respect to his employment and terminated from his employment because of his race. Parks, an African-American, began working as a corrections officer for Warren Correctional Institution (“WCI”) in 1993. In 1997, Parks, along with a group of other WCI employees, complained to a State senator and State representative about disciplinary issues at WCI.

Brigano was generally aware of Parks’ complaints to the State legislators. Parks’ claims against Brigano stem from disciplinary actions taken against him in 1998 and 1999, including his termination in 1999. Parks’ evidence of racial discrimination in the disciplinary actions and his termination is a statement allegedly made by Pat Mayer, a labor relations officer at WCI, regarding the WCI administration.

In this statement, which Mayer denies making, Mayer stated that the administration at WCI viewed Parks as a “black radical” or “radical black.” According to Parks, Mayer told him that the administration’s view of him as a “black radical” would be considered when the administration took disciplinary actions against Parks. After he was terminated, Parks brought claims under Title VII, § 1981, and § 1983 against WCI and Brigano. The district court granted

summary judgment to Defendants with respect to Parks’ Title VII claims. The court denied, however, Briga-no’s claim of qualified immunity with respect to Parks’ claims under §§ 1981 and 1983. Brigano has brought this interlocutory appeal of the district court’s denial of qualified immunity in his

summary judgment motion. II. Standards This Court reviews a district court’s denial of qualified immunity de novo. Sheets v. Mullins, 287 F.3d 581 (6th Cir.2002) (citation omitted). “The defendant bears the burden of pleading the defense, but the plaintiff bears the burden of showing that the defendant’s conduct violated a right so clearly established that a reasonable official in his position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct.” Id. (citation omitted).

Plaintiff bears the ultimate burden of proof to show that defendant is not entitled to the defense. Id. In evaluating whether or not a defendant is entitled to the defense of qualified immunity, the Court must first determine whether or not there was a violation of a constitutional right. If, looking at the evidence in a light most favorable to Plaintiff, the alleged facts show a violation of a constitutional right, then the Court must determine whether the right was clearly established, ie., “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Klein v.

Long, et al, 275 F.3d 544, 550 (6th Cir.2001)(citing Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). To the extent an appeal turns on an issue of law, a district court’s denial of

summary judgment based on qualified immunity is immediately appealable under 28 U.S.C. § 1291. Frantz v. Village of Bradford, 245 F.3d 869, 871 (6th Cir.2001). A defendant may not, however, “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.” Id. (citation omitted). The Supreme Court in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), defined the scope of interlocutory appeals of a district court’s denial of qualified immunity. The Court in Johnson discussed the reasons why interlocutory appeals are allowed for qualified immunity, and why such appeals must be limited in scope.

The Court stated that: considerations of delay, comparative expertise of trial and appellate courts, and wise use of appellate resources argue in favor of limiting interlocutory appeals of “qualified immunity” matters to eases presenting more abstract issues of law. Considering these “competing considerations,” we are persuaded that “[immunity appeals ... interfere less with the final judgment rule if they [are] limited to cases presenting neat abstract issues of law.” Johnson, 515 U.S. at 317, 115 S.Ct. at 2158 (citations omitted). In Behrens v.

Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed,2d 773 (1996), the Court explained its decision in Johnson by stating: Johnson held, simply, that determinations of evidentiary sufficiency at

summary judgment are not immediately ap-pealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly “separable” from the plaintiffs claim, and hence there is no “final decision”.... Johnson reaffirmed that

summary judgment determinations are appealable when they resolve a dispute concerning an “abstract issu[e] of law” relating to qualified immunity ... typically, the issue whether the federal right allegedly infringed was “clearly established[.]” Behrens, 516 U.S. at 313, 116 S.Ct. at 842 (citations omitted)(emphasis in original). In Ellis v.

Washington County and Johnson City, Tenn., 198 F.3d 225 (6th Cir.1999), this Court applied Johnson to a case where the factual dispute was based on uncorroborated hearsay and held that “[Nonetheless, restrained as we are by Johnson, we must dismiss [the] appeal because a factual dispute remains.” Id. at 229. The Court stated that: In a qualified immunity appeal by a state official, should the court of appeals look behind a Johnson v. Jones type factual dispute to determine if the factual dispute is based only on uncorroborated hearsay that will not be admissible at trial.

We would prefer to avoid these kinds of evidentiary issues when ruling on our jurisdiction to decide qualified immunity under Johnson v. Jones because the issue of qualified immunity cannot be “decided with reference only to undisputed facts,” the requirement for appellate jurisdiction set out by the Supreme Court.... Id. (citation omitted). Thus, in the case at bar, this Court only has jurisdiction of this interlocutory appeal to the extent the appeal is based on an abstract issue of law, ie., whether Parks’ right that Brigano allegedly violated was clearly established.

While it is trae that in evaluating any qualified immunity claim the first inquiry is whether or not there is a constitutional violation, Klein, supra, if there is a factual dispute with respect to that issue, then this Court cannot review the issue of qualified immunity. “In this circuit, it is well established that, for appellate jurisdiction to he over an interlocutory appeal, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case ... the defendant must be prepared to overlook any factual dispute and to concede an

interpretation of the facts in the light most favorable to the plaintiffs case.” Sheets, 287 F.3d at 585 (quoting, in part, Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.1998)). III. Analysis In deciding the qualified immunity defense, the district court stated: Defendants suggest, in a sentence at the conclusion of the memorandum in support of their motion for

summary judgment, that Defendant Brigano is entitled to qualified immunity with respect to Plaintiffs claims under §§ 1981 and 1983. Government officials performing discretionary functions “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A constitutional right must be clearly established in a particularized sense. See Anderson v.

Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. Defendant Brigano does not deny that racial discrimination in employment violates the Equal Protection Clause or that a reasonable person in his position would have known that Plaintiff had a right not to be subjected to discrimination on the basis of his race.

The Court is not persuaded, by virtue of Defendant Brigano’s brief argument, that he is entitled to qualified immunity. (J.A. at 31)(emphasis added). It is clear from the court’s discussion that the court did not decide a dispute involving any “abstract issue of law.” Furthermore, the issues raised by Brigano in this appeal do not concern any “abstract issue of law.” Brigano’s statement of the issue presented in this appeal highlights the factual, rather than legal, dispute in this case.

Brigano states the issue as “[wjhether a Warden loses qualified immunity based upon hearsay evidence which fails to show that he held any racial animus when he disciplined an employee.” (Appellant’s Br. at vi)(emphasis added). It is clear from this statement that the issue on appeal is the sufficiency and quality of the evidence. Brigano makes two main arguments in this appeal:

A) there is no respondeat superior liability under § 1983; and

B) Parks failed to introduce any direct evidence of race discrimination. A. Respondeat Superior: Brigano contends that the district court improperly based its decision on responde-at superior liability because, “[i]t determined that Warden Brigano is liable for the Mayer statement that Parks is a black radical.” There is nothing in the record to support Brigano’s claim that the district court ever considered the issue of re-spondeat superior. Parks’ claim against Brigano is not that Brigano and the other defendants are liable for the statement allegedly made by Mayer.

Parks’ claim is that the Defendants’ decision to terminate Parks was based on racial discrimination. The district court did not determine that “Brigano is hable” for Mayer’s statement. Brigano’s liability stems from his own actions in terminating Parks. Mayer’s statement is offered as evidence that this termination was in violation of Parks’ constitutional rights. Therefore, Brigano’s claim that the district court erroneously based its decision on respondeat superior liability is without merit. B.

Evidentiary Arguments: Appellant raises three arguments under the heading “Parks Failed to Introduce Any Direct Evidence of Race Discrimination.” These three arguments are: 1) Mayer’s Comment is Not Direct Evidence of Race Discrimination; 2) Even if the Mayer Comment is Direct Evidence of Race Discrimination, There Must Be a Nexus Between the Comment and His Suspension or Termination; 8) Mayer’s Comment is Hearsay and Cannot Defeat a

Summary Judgment Motion. All three of these arguments relate to factual disputes and therefore, may not be considered by this Court in a qualified immunity analysis. Furthermore, these arguments address the propriety of

summary judgment on Parks’ claim based on the type and sufficiency of the evidence presented to the district court. Brigano’s argument regarding hearsay evidence fails to provide Brigano with a basis for appeal. Challenges to “the quantity and quality of’ evidence cannot be a basis for such an appeal. Berryman, 150 F.3d at 564(citation and internal quotations omitted). Even when the district court’s denial of

summary judgment is based solely upon “the rankest type of inadmissible hearsay,” this Court cannot address the factual dispute. Ellis, 198 F.3d at 229. Therefore, Brigano’s arguments regarding evidentiary issues cannot be the basis for this interlocutory appeal. IV. Conclusion The district court’s decision denying Bri-gano qualified immunity did not decide any abstract issues of law. Brigano’s appeal only raises issues of factual disputes concerning the district court’s decision. Because this in an interlocutory appeal, these factual disputes do not provide this Court with jurisdiction over the appeal. Therefore, the appeal is DISMISSED for lack of jurisdiction.