United States District Court, W.D. Wisconsin
THE ESTATE OF TONY ROBINSON, JR., ex rel. PERSONAL REPRESENTATIVE ANDREA IRWIN, Plaintiff,
THE CITY OF MADISON, WISCONSIN, and MATTHEW KENNY, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
Matthew Kenny seeks immediate review by the court of appeals
of this court's denial of his motion for summary judgment
on qualified immunity. Dkt. 258. Kenny is entitled to this
immediate review unless the court certifies that his appeal
is frivolous. Plaintiff has asked the court to do so, Dkt.
259, and the parties promptly briefed the matter, Dkt. 260
and Dkt. 271. The court concludes that Kenny's appeal is
frivolous, because it relies on a fact-that Robinson attacked
Kenny in the stairwell-that is genuinely disputed. The trial
will proceed as scheduled on February 27, 2017, unless the
Seventh Circuit Court of Appeals overrules this order.
interlocutory appeal of a decision denying qualified immunity
usually stays proceedings in the district court; the
“appeal divests the district court of jurisdiction
(that is, authority) to require the appealing defendants to
appear for trial.” Apostol v. Gallion, 870
F.2d 1335, 1338 (7th Cir. 1989). The principle underlying
this rule is that an officer entitled to qualified immunity
should be shielded not only from ultimate liability but from
the hardships of the litigation itself. But there is a risk
of abuse: the rule could be used to delay and frustrate
meritorious claims. So if the defendant's qualified
immunity claim is without even arguable merit, or is
otherwise an unwarranted manipulation of the process, the
district court may certify the appeal as frivolous and
proceed to trial. Id. at 1339.
the appeal to be frivolous is not a decision to be made
lightly. The Seventh Circuit instructs district courts to
exercise this particular power sparingly. Id. And
the district courts in this circuit appear to have heeded
that warning. See Estate of Heenan ex rel. Heenan v. City
of Madison, No. 13-cv-606, 2015 WL 3539613, at *2 &
n.2 (W.D. Wis. June 5, 2015) (collecting cases and noting
that “the court found but a handful of examples of
district courts certifying an interlocutory appeal from the
denial of qualified immunity to the Seventh Circuit as
frivolous or a sham”).
purpose of an interlocutory appeal of a decision denying
qualified immunity is limited. Such an appeal may challenge
only the district court's legal determinations pertaining
to the immunity; it is not an opportunity to ask the
appellate court to decide factual disputes or to apply the
qualified immunity doctrine to disputed facts. “[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). Kenny's appeal is meritorious only if he presents
a legal issue for the Seventh Circuit's
consideration. See Weinmann v. McClone, 787 F.3d
444, 447 (7th Cir. 2015).
contends that his appeal has arguable merit because he seeks
“appellate review of the qualified immunity
determination based on the fact-pattern outlined by this
Court” in its summary judgment opinion. Dkt. 260, at 2.
“Kenny has been and continues to be prepared to have
his claim for qualified immunity evaluated on the version of
genuine and supportable facts that most favors the
plaintiff's position.” Id. at 8. In
Kenny's view of the court's summary judgment opinion,
the court determined that it is undisputed that Robinson
attacked Kenny, and the only genuinely disputed facts
concern Kenny's location when he fired the shots. And,
Kenny contends, the disputes about how far Kenny was from
Robinson when he fired are immaterial.
Kenny misreads the court's opinion, which held that what
happened in the stairwell between Kenny and Robinson is
sharply and genuinely disputed. Dkt. 236, at 2. The genuinely
disputed facts include whether Robinson attacked Kenny at
all. The court's determination that a fact is genuinely
disputed (or not) is itself a legal conclusion, which might
properly be challenged on appeal. Weinmann, 787 F.3d
at 447. But Kenny does not argue that any of the court's
determinations regarding disputed and undisputed facts are
incorrect: Kenny says that he accepts the version of the
disputed facts most favorable to plaintiff, and he simply
assumes that the fact that Robinson attacked him is
undisputed. But plaintiff has not conceded that fact.
See Dkt. 149, ¶¶ 113, 118 (plaintiff
disputes the facts concerning the encounter between Kenny and
is, of course, the only surviving eyewitness to the events in
the stairwell. But that does not compel the conclusion that
Kenny's version of those events is undisputed. Plaintiff
has adduced ample evidence that undermines Kenny's
version of events and calls his credibility into question.
Kenny's story about what happened in the stairwell has
changed: he recanted his “snapshot” statement
made immediately after the incident. Dkt. 236, at 9.
Kenny's memory of the events is impaired: he concedes
that he does not remember how he got to the bottom of the
stairs, id. at 7, and he has submitted expert
evidence that trauma of the type he experienced may impair
memory, id. at 38. The gunshot evidence and the dash
cam video undermine aspects of Kenny's story: the
distance from which he fired undermines his claim that he was
in close combat or imminent danger when he fired.
Id. at 41.
motion for summary judgment cannot be defeated merely by an
opposing party's incantation of lack of credibility over
a movant's supporting affidavit.” Walter v.
Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988). In other
words, the non-moving party cannot stave off summary judgment
merely by asserting that a witness might not stand up to
cross-examination. But “specific attacks on an
affiant's credibility with regard to central issues in a
case can be sufficient to deny a motion for summary
judgment.” Reich v. McManus, 883 F.Supp. 1144,
1148 (N.D. Ill. 1995), on reconsideration (Apr. 26,
1995) (citing In the Matter of Guglielmo, 897 F.2d
58, 63 (2d Cir. 1990)); see also Giannopoulos v. Brach
& Brock Confections, Inc., 109 F.3d 406, 411 (7th
Cir. 1997) (explaining that a non-moving party cannot
withstand summary judgment “with an unadorned claim
that a jury might not believe” certain testimony; the
non-moving party must point to specific evidence that would
undermine a witness's credibility). This is not a case
where Kenny's testimony stands refuted only by a generic
contention that a jury might not believe him. Plaintiff has
adduced specific evidence that undermines Kenny's
credibility about the central issues in the case. The record
would easily allow a reasonable juror to disregard
Kenny's testimony that Robinson punched him at the top of
the stairs. Any argument to the contrary would be frivolous.
conceded that if Robinson did not attack him, then he is not
entitled to summary judgment on the merits of the Fourth
Amendment claim. “[I]f the Court believes that a
reasonable jury could conclude that Officer Kenny simply
walked into the stairwell, was never struck or punched by Mr.
Robinson and simply opened fire at Mr. Robinson while he was
more than three or four feet away from him on the stairwell,
summary judgment is not appropriate.” Dkt. 150, at 10.
And in response to plaintiff's motion to certify
Kenny's interlocutory appeal as frivolous, Kenny offers
no argument that he would be entitled to qualified immunity
even if Robinson had not attacked him.
court has considered plaintiff's motion with appropriate
caution, recognizing that the question is not whether
Kenny's appeal is meritorious, but whether it has at
least arguable merit so that the court of appeals ought to
consider it before trial. The court concludes that it does
not have arguable merit, because Kenny's appeal depends
precisely on a genuinely disputed fact. Accordingly, the
court certifies that Kenny's interlocutory appeal is
frivolous. The case will proceed to trial as scheduled,
unless the court of appeals orders otherwise.
final pretrial conference, the court will ask the parties
whether a one-week delay in the start of trial would
accommodate plaintiff's interest in getting the case
resolved and ...