Nahmod Law

Ortiz v. Jordan and Sufficiency Challenges

It is important to distinguish interlocutory appeals of denials of qualified immunity summary judgment motions from situations of the sort that arose in Ortiz v. Jordan, 562 U.S. 180, 131 S. Ct. 884, 178 L. Ed. 2d 703 (2011).

Suppose that defendants in a §1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50(b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place. May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz resolved a conflict in the circuits and unanimously answered NO.

In Ortiz, the plaintiff, a former inmate in a state reformatory, sued two superintending prison officials alleging that they violated the Eighth and Fourteenth Amendments when they failed to protect her from a second sexual assault (after she reported the first one) and also retaliated against her when she thereafter reported that she had been sexually assaulted twice by the same corrections officer. The defendants’ qualified immunity summary judgment motion was denied by the district court on the ground that there were genuine issues of material fact in dispute. Rather than appeal, the defendants proceeded to trial after unsuccessfully making motions for judgment as a matter of law under F.R.C.P. 50(a). The jury awarded $350,000 in compensatory and punitive damages against one defendant and $275,000 against the other. Defendants then appealed the district court’s order denying their qualified immunity summary judgment motion, and the Sixth Circuit reversed on the ground that the defendants were protected by qualified immunity.

The Opinions in Ortiz

The Supreme Court in turn reversed unanimously in an opinion by Justice Ginsburg. The Court explained: “The order retains its interlocutory character as simply a step along the route to final judgment.” Once there is a trial, the qualified immunity defense must be addressed “in light of the character and quality of the evidence received in court.” Even though the Sixth Circuit in this case apparently reviewed the district court’s pretrial order in light of some evidence submitted at trial, this was impermissible because the defendants’ failure to renew their motion for judgment as a matter of law under Rule 50(b) deprived the Sixth Circuit of any “warrant to reject the appraisal of the evidence” by the district court which had seen and heard the witnesses. Furthermore, the Sixth Circuit’s decision was not based on a purely legal issue pursuant to Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 238 (1995): the relevant Eighth Amendment law was clearly settled at the time of the challenged conduct. Consequently, defendants’ appeal was not properly before the Sixth Circuit because it involved evidentiary sufficiency, which defendants could have raised by post-trial motion under Rule 50(b) but did not. (see generally on Johnson v. Jones, §8:9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw))

Justice Thomas, joined by Justices Scalia and Kennedy, concurred in the judgment. 131 S. Ct. at 893. They complained that the Court should have limited its decision to the impropriety of appealing a district court’s denial of a qualified immunity summary judgment motion after a trial on the merits without getting into the effect of the defendants’ post-trial failure to renew their motion for judgment as a matter of law under Rule 50(b). In their view, this was a relatively easy case where the Court of Appeals did not have jurisdiction to review, and the Court should not have reached out to address “difficult and far-reaching questions of civil procedure.”

Comments on Ortiz

Several comments about Ortiz are appropriate. First, the Court did not rule that the defendants had waived their qualified immunity defense. Rather, had they properly used Rule 50(b), they could have renewed the question of their entitlement to qualified immunity after trial. Because they did not do so, the Sixth Circuit did not have jurisdiction over their attempt to appeal the district court’s denial of their pretrial qualified immunity summary judgment motion. Second, the Court rejected the defendants’ contention that their appeal only raised issues of law that the Sixth Circuit had jurisdiction to decide. Finally, and despite the misgivings of the concurring Justices, the Court acted appropriately in advising attorneys how to deal with qualified immunity under Rule 50(b) in situations where denials of qualified immunity summary judgment motions are not immediately appealed and §1983 damages claims against state and local government officials go to trial.

Dupree v. Younger and Purely Legal Issues

Thereafter, the Court considered the question whether the preservation requirement of Ortiz—that “a party who wants to preserve a sufficiency challenge for appeal must raise it anew in a post-trial motion”—applies “to a purely legal issue resolved at summary judgment.” In Dupree v. Younger, 143 S. Ct. – (2023), the Court answered in an opinion by Justice Barrett that it does not.

In this § 1983 Fourteenth Amendment excessive force case brought by a pretrial detainee against a corrections officer, the defendant moved for summary judgment on the ground that the plaintiff had failed to exhaust administrative remedies under the Prison Litigation Reform Act—see generally §9:65 of my Treatise.  The district court denied the motion, concluding as a matter of law that there was no factual dispute that the exhaustion requirement had been satisfied. After a jury trial at which the plaintiff prevailed, the defendant did not file a post-trial motion under Rule 50(b). He instead appealed to the Fourth Circuit on one issue: the district court’s rejection of his exhaustion defense on summary judgment. The Fourth Circuit rejected the appeal on the ground that the defendant did not renew the exhaustion issue in a post-trial motion per Ortiz, even though the issue was a purely legal one.

The Opinion in Dupree

The Supreme Court unanimously reversed, ruling that Ortiz was limited to sufficiency of the evidence issues and did not extent to purely legal issues. It explained: “Fact-dependent appeals must be appraised in light of the complete trial record. … From the reviewing court’s perspective, there is no benefit to having a district court reexamine a purely legal issue after trial.” It went on to reject the defendant’s counterargument that the Court’s decision improperly created a two-track system of summary judgment. The Court responded that Rule 56 did not demand “such uniformity”: district courts sometimes deny motions for summary judgment because there are no genuine issues of material fact in dispute, while at other times they do so on purely legal grounds. Therefore, the Court’s approach distinguishing between sufficiency of the evidence issues and purely legal issues made sense. The Court then remanded to the Fourth Circuit to decide whether the exhaustion issue before it was indeed purely legal.

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