                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 19a0179n.06

                                               No. 18-5365


                            UNITED STATES COURT OF APPEALS                                      FILED
                                 FOR THE SIXTH CIRCUIT                                    Apr 05, 2019
                                                                                     DEBORAH S. HUNT, Clerk

    RICHARD L. CLEMONS,                              )
           Plaintiff-Appellee,                       )          ON APPEAL FROM THE UNITED
                                                     )          STATES DISTRICT COURT FOR
           v.                                                   THE   EASTERN DISTRICT OF
                                                     )
                                                                KENTUCKY
    JOHN COUCH,                                      )
           Defendant-Appellant.                      )
                                                                                OPINION
                                                     )

          BEFORE: CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.*

          JANE B. STRANCH, Circuit Judge. Defendant Trooper John Couch of the Kentucky

State Police brings this interlocutory appeal from the district court’s denial of summary judgment

in an action brought by plaintiff Richard Clemons under 42 U.S.C. § 1983 and state law. On

appeal, Couch challenges the district court’s denial of qualified immunity for Clemons’s federal

and state law claims. Because no questions of law are implicated as to the federal claims or the

state law allegation of malicious prosecution, we DISMISS the appeal in relevant part for lack of

jurisdiction. We AFFIRM the denial of qualified official immunity for the remaining state law

claims.

                                        I.   BACKGROUND

          Clemons and his wife Evalee live in Hazard, Kentucky. In December 2015 or January

2016, their son Richard Dustin Clemons (Dustin), his then-wife Christina, and Dustin and


*
  The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by
designation.
No. 18-5365, Clemons v. Couch


Christina’s child moved into Clemons and Evalee’s home after Dustin’s house was damaged by

fire. Within a few months, Dustin and Christina separated, and Christina moved out of the

Clemonses’s residence. On March 27, 2016, Christina went to a Kentucky State Police station and

requested that a police officer escort her while she retrieved personal belongings from the residence

because she was afraid to return alone. Couch agreed to accompany Christina and her mother.

       When Couch, Christina, and her mother arrived at the residence, Clemons, Evalee, and

Dustin were all at home. As Christina gathered the items in another room and her mother went to

the garage, Couch stood in the residence’s living room and directed Clemons several times to “sit

down and shut up.” Clemons told Couch and Christina to leave his property and cursed at Couch,

telling him, “You can’t do this.” Clemons then called his son-in-law John Napier, a Perry County

sheriff’s deputy, who was on his regular patrol and soon arrived at the house with another deputy.

The parties generally agree on this series of events, though they disagree about the extent of

Clemons’s hostility toward Couch.

       The parties’ and witnesses’ accounts of the subsequent events diverge. According to

Clemons, as Couch and Christina were leaving the house, Clemons walked toward them “at a

normal pace” to shut the door behind them. Then, when he was about five feet away from Couch,

Clemons told Couch that he “smelled like pig shit,” to which Couch responded by punching

Clemons near his right eye. Clemons testified that the punch knocked him down to his stomach.

While his subsequent memories of the incident are hazy, Clemons recalled being handcuffed and

stunned by a Taser and seeing Couch fighting with his son, Dustin. He also remembered that after

Couch arrested him and took him outside, the officer “bounced [his] head off the top of the

cruiser.” A photograph in the record shows Clemons with a black eye and a bruise on his forehead.




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No. 18-5365, Clemons v. Couch


       Clemons’s son, Dustin, and son-in-law, Napier, largely corroborate Clemons’s account.

For example, in his deposition, Dustin stated that after Clemons said Couch smelled like “pig shit,”

the officer “threw his hat down” and “took his fist and started beating [Clemons] in his face with

it,” hitting him “quite a few times” and “as hard as he [could]” after Clemons had fallen to the

floor. Dustin said he then punched Couch once or twice and got hit with the Taser shortly

thereafter. Napier similarly stated, “Pretty much as soon as [Clemons] got [the ‘pig shit’ comment]

out of his mouth, Trooper Couch wheeled around and punched him and threw his hat off and went

after him.” In his deposition, Napier described his exchange with Couch after Couch deployed his

Taser on Clemons and Dustin:

       . . . I looked at him and said, “That was uncalled for.” I was referring to when he
       punched—when it all started, went downhill. I said, “That was uncalled for.” And
       he said, “You’re supposed to be on my side.” And I said, “It ain’t about sides. You
       can’t hit people just for running their mouth. . . .” I was referring to the punch that
       started the whole thing. . . . I just thought the whole punch at the beginning and then
       him coming back and punching my brother-in-law were both unwarranted, just by
       my experience and my training.

       Couch describes the altercation differently. In his police report of the March 27 incident,

Couch stated that Clemons had followed Christina as she was leaving, yelling at her, and that

Clemons had positioned himself between Couch and the door. At that point, Clemons turned

toward Couch in a “combative stance,” which made Couch “feel threatened and use[] a two handed

body check to clear space from him.” Clemons attempted to punch Couch, Couch dodged, and

Napier got between them. In his deposition, Couch said that after Clemons swung and missed,

Couch performed a second “two-hand check.” Couch said he “can’t remember hitting [Clemons]

with a closed fist at all.” He also stated that he did not know whether Clemons had his fists closed,

and he “can’t remember looking at his hands,” despite also noting that he felt threatened because




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No. 18-5365, Clemons v. Couch


he “could see [Clemons’s] fists clinch just in an aggressive manner . . . like a boxer.” He asserted

that he did not bounce Clemons’s head on the cruiser.

       Couch placed Clemons, Dustin, and Evalee under arrest, variously citing them for

menacing, disorderly conduct, assault of a police officer, obstruction of governmental operations,

and resisting arrest. A grand jury declined to issue any indictments.

       Clemons filed a civil rights action against Couch and others under 42 U.S.C. § 1983,

alleging violations of federal and state law. The district court granted the defendants’ motion to

dismiss in part, leaving only the claims against Couch in his individual capacity. Clemons

subsequently filed an amended complaint that raised federal claims against Couch for

unreasonable search and seizure, false arrest, and excessive force, as well as state law claims for

assault, battery, false imprisonment, malicious prosecution, intentional infliction of emotional

distress, and three unintentional torts. Couch filed a second motion to dismiss, which the court

denied, and then filed a motion for summary judgment.

       The district court granted Couch’s summary judgment motion in part, ruling that Couch

was entitled to qualified immunity for the claim of a Fourth Amendment violation based on

warrantless entry of Clemons’s residence.         Clemons voluntarily withdrew his claims for

unintentional torts and intentional infliction of emotional distress. The district court scheduled

Clemons’s remaining claims for trial, finding disputes of material fact (and thus no federal or state

immunity) relating to his claims for false arrest, excessive force, assault, battery, false

imprisonment, and malicious prosecution. The denials of qualified immunity for the federal claims

and qualified official immunity for the state law claims are the subject of this interlocutory appeal.




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No. 18-5365, Clemons v. Couch


                                             II.   ANALYSIS

        A.       Qualified Immunity

        As an initial matter, we must determine whether we have jurisdiction to consider this

interlocutory appeal. “[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. . . .” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). But a defendant may not appeal a

denial of a motion for summary judgment based on qualified immunity “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, 320 (1995); see also Family Serv. Ass’n ex rel. Coil v. Wells Twp., 783

F.3d 600, 607 (6th Cir. 2015) (“Johnson applies to interlocutory appeals that solely contest the

plaintiff’s account of the facts.”). “It is well-established that ‘a defendant challenging the denial

of summary judgment on qualified immunity grounds must be willing to concede the most

favorable view of the facts to the plaintiff for purposes of the appeal.’” Jacobs v. Alam, 915 F.3d

1028, 1039 (6th Cir. 2019) (quoting Hopper v. Plummer, 887 F.3d 744, 757 (6th Cir. 2018)).

“[W]e may exercise jurisdiction only if a defendant ‘raises the purely legal question of whether

the facts alleged support a claim of violation of clearly established law.’” Id. (quoting Livermore

ex rel. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007).

        We therefore examine the basis of each of Couch’s arguments to determine whether we

have jurisdiction over this appeal.

                 1. False Arrest

        Claiming that the district court “isolated facts from the totality of the circumstances” to

find that Couch did not have probable cause to arrest Clemons for menacing,1 Couch insists that


1
 “A person is guilty of menacing when he intentionally places another person in reasonable apprehension of imminent
physical injury.” Ky. Rev. Stat. § 508.050.

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No. 18-5365, Clemons v. Couch


“the undisputed facts indicate that Clemons was visibly behaving in a hostile manner.” Appellant

Br. at 15. He accepts as undisputed that Clemons stood up, approached Couch to stand five feet

away from him, and told Couch that he smelled like “pig shit.” Couch also concedes that Clemons

may not have intended to threaten him.2 But he then seeks to characterize those facts by saying

that Clemons “showed hostility by going outside [the Kentucky State Police] and attempting to

employ an altogether different law enforcement agency,” “unjustifiably disobeying” Couch’s order

to remain seated and quiet, approaching Couch “in defiance and with hostility,” and “acting in a

manner that represented a legitimate threat of harm” to Couch. Id. at 15, 18–19.

           “Mere conclusory statements that the [defendant] construe[s] the facts in the light most

favorable to the plaintiff cannot confer jurisdiction upon this Court.” Thompson v. Grida, 656

F.3d 365, 368 (6th Cir. 2011). Couch’s insistence on characterizing facts and illustrating the

“totality of the circumstances” demonstrates an unwillingness to make an “unqualified concession”

of the best view of the facts to the plaintiff. Booher v. N. Ky. Univ. Bd. of Regents, 163 F.3d 395,

397 (6th Cir. 1998). The testimony from Clemons, Dustin, Napier, and Couch reveals disputes of

fact over the degree of hostility shown, the content of verbal exchanges, and the parties’ physical

positioning and posturing at the time of the altercation. Clemons disputes that he ever made threats

and testified that he was walking toward the officers to close the door behind them. Napier stated

that Clemons called him because he wanted to know his rights and that the scene “wasn’t what

[he] would call a hostile environment.” Couch himself recognizes that there are “competing

accounts of disputed facts” over the circumstances leading to the physical altercation. Appellant

Br. at 16.




2
    Viewed in the light most favorable to the plaintiff, the facts reflect that Clemons did not intend to threaten Couch.

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No. 18-5365, Clemons v. Couch


        If we “ignore the defendant’s attempts to dispute the facts,” there is no legal issue to

resolve. Bunkley v. City of Detroit, 902 F.3d 552, 560 (6th Cir. 2018) (internal quotation marks

omitted). Couch’s argument amounts to a claim that the district court failed to “correctly analyze[]

the relevant evidence. . . .” Plumhoff v. Rickard, 572 U.S. 765, 772 (2014) (citing Johnson, 515

U.S. at 308, 313). Such a challenge to “evidence sufficiency” does not establish our jurisdiction

over an interlocutory appeal of a denial of qualified immunity. Id.

        In the alternative, Couch argues that, even if he cannot establish qualified immunity based

on his arrest of Clemons for menacing and disorderly conduct, he nevertheless had probable cause

to arrest Clemons for the other offenses listed in the arrest citation: assault of a police officer,

obstruction of governmental operations, and resisting arrest. But these arguments are not properly

before us. “If a party fails to raise an issue to the district court, then that party ‘forfeits the right to

have the argument addressed on appeal.’” Guyan Int’l, Inc. v. Prof’l Benefits Adm’rs, Inc., 689

F.3d 793, 799 (6th Cir. 2012) (quoting Armstrong v. City of Melvindale, 432 F.3d 695, 699–700

(6th Cir. 2006)). In his motion for summary judgment and in his reply to Clemons’s response,

Couch argued only that he had probable cause to arrest Clemons for menacing and disorderly

conduct. The district court found Couch forfeited his arguments that he had probable cause to

arrest Clemons for the other offenses listed in Clemons’s arrest citation. “Appellate courts

generally do not consider issues that the district court did not evaluate because it would be unfair

to resolve a question without giving the parties an opportunity to present their evidence and

arguments.” Pecsi v. City of Niles, 674 F. App’x 544, 546 (6th Cir. 2017). The parties have not

“fully briefed the issue,” id., and the case does not present “particular circumstances” or “a plain

miscarriage of justice,” Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th

Cir. 1988) (citation omitted). We therefore do not consider Couch’s forfeited arguments.



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No. 18-5365, Clemons v. Couch


       In sum, to the extent Couch’s appeal relies on the position that he had probable cause to

arrest Clemons for menacing or disorderly conduct, we have no jurisdiction to review the district

court’s denial of qualified immunity because the appeal has “‘drift[ed] from purely legal into the

factual realm’” where “[d]isputes of fact clearly exist.” Thompson, 656 F.3d at 368 (quoting

Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir. 1998)). To the extent his appeal invokes the other

alleged grounds for arrest (assault of a police officer, obstruction of governmental operations, and

resisting arrest), those arguments are forfeited.

               2. Excessive Force

       Couch similarly disputes the facts underpinning the district court’s denial of qualified

immunity as to the excessive force claim. According to the version of events described by

Clemons, Napier, and Dustin, Clemons insulted Couch, and Couch responded by immediately

punching Clemons in the face. Couch argues that he “was certainly entitled to use more force than

merely striking Clemons one time in the face” because Clemons and his family created “life-

threatening circumstances.” Appellant Br. at 31. Couch also argues that he is entitled to qualified

immunity for any claim of excessive force arising from the use of his Taser and the bouncing of

Clemons’s head against his police car.

       Couch acknowledges that the district court “refrained from making any ruling” on the claim

that hitting Clemons’s head on his vehicle constituted excessive force. Id. at 35. In fact, the district

court explicitly found that it was not necessary “to determine at this juncture whether other

incidents, such as deploying the taser or Clemons’s claim that Trooper Couch ‘bounced [his] head

off the top of the cruiser,’ would also defeat Trooper Couch’s motion.” Even if there is consensus

about those events, the district court ruled, Clemons’s claim for excessive force must proceed

because there is a genuine dispute of material fact as to the circumstances of the initial punch.



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No. 18-5365, Clemons v. Couch


       As to the initial punch, Couch’s argument does not raise a legal issue that we can “separate”

from the factual dispute. Bunkley, 902 F.3d at 560. Without first resolving the initial factual

dispute (who was the aggressor?), it is impossible to assess the legal question of whether Couch

was entitled to strike Clemons in self-defense. Unlike the defendants in Plumhoff, Couch does not

dispute the district court’s finding that punching someone in response to an insult is a violation of

clearly established law. 572 U.S. at 773; see also City of Houston v. Hill, 482 U.S. 451, 461 (1987)

(recognizing a First Amendment right to insult law enforcement officers); Kennedy v. City of Villa

Hills, 635 F.3d 210, 215–16 (6th Cir. 2011) (explaining that the law expects officers not to respond

to insults with physical force). Rather, he argues that the district court failed to appreciate that

Napier said Couch “may have” felt like he was in danger from Clemons. But that testimony merely

acknowledges a dispute of fact: Did Couch feel like he was in danger or not?

       Because Couch argues that the district court did not properly consider the facts and does

not raise any questions of law, we do not have jurisdiction over the appeal from the denial of

qualified immunity for the claim of excessive force.

       B.      Kentucky Official Immunity

       Couch also appeals the district court’s denial of qualified official immunity under

Kentucky law for Clemons’s state law claims for assault, battery, and false imprisonment. As to

the final state law claim for malicious prosecution, Couch argues that the district court erred in

finding that qualified official immunity was unavailable and denying summary judgment due to

the existence of disputed facts.

       Again, we must determine whether we have jurisdiction over these portions of the appeal.

“In a diversity case or a federal question action involving pendent state claims, we must look to

state immunity law to determine whether a denial of immunity based on state law is appealable.”


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No. 18-5365, Clemons v. Couch


Livermore, 476 F.3d at 407. Kentucky permits interlocutory appeal to review a denial of qualified

official immunity. Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014); Breathitt County Bd.

of Educ. v. Prater, 292 S.W.3d 883, 886–87 (Ky. 2009). We therefore consider Couch’s

interlocutory appeal of the denial of qualified official immunity for the assault, battery, and false

imprisonment claims.

       By its nature, however, there can be no qualified official immunity for a claim of malicious

prosecution. “[I]f a plaintiff can prove that a police officer acted with malice, the officer has no

immunity; if the plaintiff cannot prove malice, the officer needs no immunity. . . . [T]he issue of

qualified official immunity is superfluous.” Martin v. O’Daniel, 507 S.W.3d 1, 5–6 (Ky. 2016).

Whether Couch acted with the requisite malice when participating in prosecuting Clemons is an

unresolved factual question. We thus do not have jurisdiction over the malicious prosecution

portion of the appeal.

       In Kentucky, “[q]ualified official immunity applies to the negligent performance by a

public officer or employee of (1) discretionary acts or functions. . . ; (2) in good faith; and

(3) within the scope of the employee’s authority.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.

2001) (internal citation omitted). If an officer establishes a prima facie case that the allegedly

tortious act was performed “within the scope of his/her discretionary authority, the burden shifts

to the plaintiff to establish . . . that the discretionary act was not performed in good faith.” Id. at

523. Bad faith is established either when the officer “willfully or maliciously intended to harm

the plaintiff or acted with a corrupt motive” or when the act is objectively unreasonable—“a

violation of a constitutional, statutory, or other clearly established right which a person in the

public employee’s position presumptively would have known was afforded to a person in the

plaintiff’s position.” Id. The district court found that Couch may have been the initial aggressor


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No. 18-5365, Clemons v. Couch


and thus acted in bad faith. It consequently denied Couch qualified official immunity for assault,

battery, and false imprisonment.

       We review a district court’s denial of qualified immunity de novo. Brennan v. Twp. of

Northville, 78 F.3d 1152, 1154 (6th Cir. 1996). A plaintiff opposing a defendant’s motion for

summary judgment on the basis of qualified official immunity “cannot defeat that motion without

presenting at least some affirmative evidence demonstrating that there is a genuine issue of

material fact requiring trial.” Rowan Cty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (quoting

Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992)). Clemons does not contest that Couch, who

was on duty, was performing functions within the scope of his authority when he accompanied

Christina and her mother to Clemons’s house. It is Clemons’s burden, therefore, to show by direct

or circumstantial evidence that Couch did not act in good faith or, at least, that there is a genuine

issue of material fact as to whether he did. See id. at 475; Yanero, 65 S.W.3d at 523.

               1. Assault and Battery

       Clemons alleges that that Couch committed assault and battery when Couch punched him

in the eye, continued to attack him, deployed his Taser, and handcuffed him. Couch does not

dispute that his actions could be considered assault and battery under some circumstances, but he

argues that he is entitled to qualified official immunity because he acted in good faith when he hit

Clemons in self-defense and for the purpose of making a lawful arrest.

       We disagree. Viewing the facts in the light most favorable to Clemons, Couch “willfully

or maliciously intended to harm the plaintiff” when he punched him in the face in response to an

insult. Yanero, 65 S.W.3d at 523. Such an action constitutes bad faith. Though Couch disputes

this characterization of the facts, Clemons has met his burden by producing some credible evidence




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No. 18-5365, Clemons v. Couch


that Couch did not act in good faith. The resulting factual dispute precludes granting qualified

official immunity. See Rowan, 201 S.W.3d at 475.

               2. False Imprisonment

       Clemons alleges that Couch falsely imprisoned him by ordering him to sit down and shut

up and also by falsely arresting him. Couch argues that in subduing and arresting Clemons, he

acted in accordance with a police officer’s privilege to perform a valid arrest under Kentucky law

and that he is therefore entitled to immunity. See Dunn v. Felty, 226 S.W.3d 68, 71 (Ky. 2007)

(describing the officer’s privilege to arrest an individual pursuant to a warrant or without a warrant

when the officer has probable cause to arrest).

       Crediting Clemons’s view of the facts, Couch knocked Clemons to the ground, handcuffed

him, and arrested him in response to an insult. Clemons has therefore met his burden to show

evidence of Couch’s bad faith based on willful or malicious intent to harm. As discussed above,

disputed facts as to Couch’s bad faith preclude a grant of qualified official immunity to Couch for

Clemons’s claim of false imprisonment.

                                    III.   CONCLUSION

       For the reasons set forth above, we DISMISS for lack of jurisdiction Couch’s interlocutory

appeal of the district court’s denial of summary judgment for Clemons’s claims under § 1983 and

for malicious prosecution. We AFFIRM the district court’s denial of qualified official immunity

for Clemons’s claims of assault, battery, and false imprisonment.




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