OPINION OF THE COURT
ORTIZ V. JORDAN
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-737
MICHELLE ORTIZ, PETITIONER
v. PAULA JORDAN
et al.
on writ of certiorari to the united states court of
appeals for the sixth circuit
[January 24, 2011]
Justice Ginsburg delivered the
opinion of the Court.
We address in this case a
procedural issue arising in a civil rights action brought under 42
U. S. C. §1983 by Michelle Ortiz, a former inmate at the Ohio
Reformatory for Women. Plaintiff below, petitioner here, Ortiz
filed a complaint in federal court stating key facts on which she
based claims for damages against superintending prison officers. On
two consecutive nights during her one-year incarceration, Ortiz
stated, she was sexually assaulted by a corrections officer.
Although she promptly reported the first incident, she further
alleged, prison authorities took no measures to protect her against
the second assault. After that assault, Ortiz charged, and in
retaliation for accounts she gave of the two episodes, prison
officials placed her, shackled and handcuffed, in solitary
confinement in a cell without adequate heat, clothing, bedding, or
blankets. The treatment to which she was exposed, Ortiz claimed,
violated her right, safeguarded by the Eighth and Fourteenth
Amendments, to reasonable protection from violence while in
custody.
Principal defendants in the suit, Paula
Jordan, a case manager at Ortiz’s living unit, and Rebecca Bright,
a prison investigator, moved for summary judgment on their pleas of
“qualified immunity,” a defense that shields officials from suit if
their conduct “d[id] not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Harlow v.
Fitzgerald,
457 U. S. 800, 818
(1982). Finding that the qualified immunity defense turned on
material facts genuinely in dispute, see Fed. Rule Civ. Proc.
56(a), the District Judge denied summary judgment.
Ortiz
v.
Voinovich, 211 F. Supp. 2d 917, 923–930 (SD Ohio
2002).
The case then proceeded to trial, and the jury
returned verdicts for Ortiz against both Jordan and Bright. The two
officers appealed to the United States Court of Appeals for the
Sixth Circuit, targeting,
inter alia, the denial of their
pretrial motion for summary judgment. “[C]ourts normally do not
review the denial of a summary judgment motion after a trial on the
merits,” the Court of Appeals recognized. 316 Fed. Appx. 449, 453
(2009). Nevertheless, the Court continued, “denial of summary
judgment based on qualified immunity is an exception to this rule.”
Ibid. Reversing the judgment entered on the jury’s
verdict, the appeals court held that both defendants were sheltered
from Ortiz’s suit by qualified immunity.
We granted review, 559 U. S. ___ (2010), to
decide a threshold question on which the Circuits are split: May a
party, as the Sixth Circuit believed, appeal an order denying
summary judgment after a full trial on the merits?[
Footnote 1] Our answer is no. The order
retains its interlocutory character as simply a step along the
route to final judgment. See
Cohen v.
Beneficial
Industrial Loan Corp.,
337 U. S. 541, 546
(1949). Once the case proceeds to trial, the full record developed
in court supersedes the record existing at the time of the summary
judgment motion. A qualified immunity defense, of course, does not
vanish when a district court declines to rule on the plea
summarily. The plea remains available to the defending officials at
trial; but at that stage, the defense must be evaluated in light of
the character and quality of the evidence received in court.
When summary judgment is sought on a qualified
immunity defense, the court inquires whether the party opposing the
motion has raised any triable issue barring summary adjudication.
“[O]nce trial has been had,” however, “the availability of official
immunity should be determined by the trial record, not the
pleadings nor the summary judgment record.” 15A C. Wright, A.
Miller, & E. Cooper, Federal Practice & Procedure §3914.10,
p. 684 (2d ed. 1992 and Supp. 2010). After trial, if defendants
continue to urge qualified immunity, the decisive question,
ordinarily, is whether the evidence favoring the party seeking
relief is legally sufficient to overcome the defense. See Fed. Rule
Civ. Proc. 50(a), (b) (stating conditions on which judgment may be
granted as a matter of law).
In the case before us, the Court of Appeals,
although purporting to review the District Court’s denial of the
prison officials’ pretrial summary-judgment motion, 316 Fed. Appx.,
at 453, several times pointed to evidence presented only at the
trial stage of the proceedings, see
id., at 453–454. The
appeals court erred, but not fatally, by incorrectly placing its
ruling under a summary-judgment headline. Its judgment was infirm,
however, because Jordan’s and Bright’s failure to renew their
motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b) left the appellate forum with no warrant to reject
the appraisal of the evidence by “the judge who saw and heard the
witnesses and ha[d] the feel of the case which no appellate printed
transcript can impart.”
Cone v.
West Virginia Pulp
& Paper Co.,
330 U. S. 212, 216
(1947).
I
Michelle Ortiz, serving a
sentence for aggravated assault against her husband,[
Footnote 2] maintained that she was sexually
assaulted on consecutive days by Corrections Officer Douglas
Schultz. On Friday, November 8, 1996, Ortiz recounted, Schultz
walked up behind her in the washroom of her living quarters and
grabbed one of her breasts.[
Footnote 3] Ortiz fended off the assault, but Schultz
returned later that day and threatened to “see [her] tomorrow,” Tr.
36.
The next day, Ortiz described the
incident to Jordan. After assuring Ortiz that “no one has the right
to touch you,” 316 Fed. Appx., at 451 (internal quotation marks
omitted), Jordan told Ortiz that Schultz had been reassigned to
another correctional facility and was serving his last day at the
reformatory. Ortiz could file a written complaint, Jordan noted.
She suggested, however, that Ortiz not do so, in view of Schultz’s
imminent departure. Jordan advised Ortiz that she “always ha[d] the
right to defend [her]self,” Tr. 43, and counseled her to
“ ‘hang out with [her] friends’ for the rest of the day so
that Schultz would not have the chance to be alone with her,” 316
Fed. Appx., at 451 (alteration in original).
The day of her conversation with Ortiz, Jordan
wrote an incident report describing her version of the encounter.
In that account, Jordan stated that Ortiz had refused to name her
assailant or provide any other information about the assault.
Jordan did not immediately notify her superiors of the assault
Ortiz reported and Ortiz’s consequent fears about her safety.
Taking the incident report home in her workbag, Jordan submitted it
upon her return to work two days later.
Ortiz endeavored to follow Jordan’s advice
about staying in the company of friends. But later in the day,
feeling ill, she returned to her room and fell asleep. Three other
inmates were in the room when Ortiz went to sleep. They were gone
when she awoke to find Schultz standing over her, one hand fondling
her left breast, the fingers of the other hand inside her underwear
penetrating her vagina.
Bright’s investigation began two days after
the second assault. During its course, Bright placed Ortiz in
solitary confinement. Ortiz maintained that Bright isolated her in
retaliation for her accusations against Schultz. Bright, however,
testified that she segregated Ortiz because Ortiz continued to
discuss the investigation with other inmates, disobeying Bright’s
repeated instructions to refrain from speaking about it.
In her §1983 action, Ortiz claimed that Jordan
did nothing to ward off Schultz’s second sexual assault, despite
Jordan’s awareness of the substantial risk of that occurrence.
Bright, Ortiz charged, retaliated against her because she resisted
Bright’s efforts to induce her to retract her accounts of Schultz’s
assaults. (Schultz, having resigned from state employment, could
not be found and served with process.) The District Court, noting
multiple factual disputes material to Ortiz’s claims and the
officers’ defense of qualified immunity, denied summary judgment to
Jordan and Bright, 211 F. Supp. 2d, at 923–930;[
Footnote 4] neither defendant appealed the
District Court’s denial of summary judgment.
The case proceeded to trial, and a jury
returned a verdict of $350,000 in compensatory and punitive damages
against Jordan and $275,000 against Bright. Jordan and Bright
sought judgment as a matter of law, pursuant to Rule 50(a), both at
the close of Ortiz’s evidence and at the close of their own
presentation. But they did not contest the jury’s liability finding
by renewing, under Rule 50(b), their request for judgment as a
matter of law. Nor did they request a new trial under Rule 59(a).
The District Court entered judgment for Ortiz in accordance with
the jury’s verdict.
On appeal, Jordan and Bright urged both that
the District Court should have granted them summary judgment on
their defense of qualified immunity and that the ver-dict was
“against the weight of the evidence.” Brief for
Defendants-Appellants in No. 06–3627 (CA6), pp. 21, 26. Appraising
the parties’ evidence under a
de novo standard of review,
the Court of Appeals “reverse[d] the denial of qualified immunity
to both Bright and Jordan.” 316 Fed. Appx., at 455.[
Footnote 5]
We granted certiorari to resolve the conflict
among the Circuits as to whether a party may appeal a denial of
summary judgment after a district court has conducted a full trial
on the merits. See n. 1,
supra.
II
The jurisdiction of a Court of
Appeals under 28 U. S. C. §1291 extends only to “appeals from
… final decisions of the district courts.” Ordinarily, orders
denying summary judgment do not qualify as “final decisions”
subject to appeal. Summary judgment must be denied when the court
of first instance determines that a “genuine dispute as to [a]
material fact” precludes immediate entry of judgment as a matter of
law. Fed. Rule Civ. Proc. 56(a). Such rulings, we have observed,
are “by their terms interlocutory.”
Liberty Mut. Ins. Co.
v.
Wetzel,
424 U. S. 737, 744
(1976).
Because a plea of qualified
immunity can spare an official not only from liability but from
trial, we have recognized a limited exception to the categorization
of summary judgment denials as nonappealable orders.
Mitchell v.
Forsyth,
472 U. S. 511, 525–526
(1985). When summary judgment is denied to a defendant who urges
that qualified immunity shelters her from suit, the court’s order
“finally and conclusively [disposes of] the defendant’s claim of
right not to stand trial.”
Id., at 527 (emphasis deleted).
Therefore,
Mitchell held, an immediate appeal may be
pursued.
Ibid.
We clarified in
Johnson v.
Jones,
515
U. S. 304 (1995), that immediate appeal from the denial of
summary judgment on a qualified immunity plea is available when the
appeal presents a “purely legal issue,” illustratively, the
determination of “what law was ‘clearly established’ ” at the
time the defendant acted.
Id., at 313. However, instant
appeal is not available,
Johnson held, when the district
court determines that factual issues genuinely in dispute preclude
summary adjudication.
Ibid.
Jordan and Bright sought no immediate appeal
from the denial of their motion for summary judgment. In light of
Johnson, that abstinence is unsurprising. Moreover, even
had instant appellate review been open to them, the time to seek
that review expired well in advance of trial. See Fed. Rule App.
Proc. 4(a)(1)(A) (notice of appeal must generally be filed “within
30 days after the judgment or order appealed from”). Nor did they
avail themselves of Rule 50(b), which permits the entry,
postverdict, of judgment for the verdict loser if the court finds
that the evidence was legally insufficient to sustain the verdict.
See Fed. Rule Civ. Proc. 50(a), (b). Absent such a motion, we have
repeatedly held, an appellate court is “powerless” to review the
sufficiency of the evidence after trial.
Unitherm Food Systems,
Inc. v.
Swift-Eckrich, Inc.,
546 U. S. 394, 405
(2006); see
Cone, 330 U. S., at 218.[
Footnote 6]
“[Q]uestions going to the sufficiency of the
evidence are not preserved for appellate review by a summary
judgment motion alone,” Jordan and Bright acknowledge; rather,
challenges of that order “must be renewed post-trial under Rule
50.” Brief for Respondents 11. Jordan and Bright insist, however,
in defense of the Sixth Circuit’s judgment, that sufficiency of the
evidence is not what is at stake in this case. A qualified immunity
plea raising an issue of a “purely legal nature,” they urge,
ibid., is preserved for appeal by an unsuccessful motion
for summary judgment, and need not be brought up again under Rule
50(b).
Id., at 11–12 (citing as pathmarking
Rekhi
v.
Wildwood Indus., Inc., 61 F. 3d 1313, 1318 (CA7
1995)). Unlike an “evidence sufficiency” claim that necessarily
“hinge[s] on the facts adduced at trial,” they maintain, a purely
legal issue can be resolved “with reference only to undisputed
facts.” Brief for Respondents 16 (quoting
Mitchell, 472 U.
S., at 530, n. 10).
We need not address this argument, for the
officials’ claims of qualified immunity hardly present “purely
legal” issues capable of resolution “with reference only to
undisputed facts.” Cases fitting that bill typically involve
contests not about what occurred, or why an action was taken or
omitted, but disputes about the substance and clarity of
pre-existing law. See
Behrens v.
Pelletier,
516 U. S. 299,
313 (1996);
Johnson, 515 U. S. at 317.
Here, however, the pre-existing law was not in
controversy. See
Farmer v.
Brennan,
511 U. S. 825, 834, 847
(1994) (prison official may be held liable for “deliberate
indifference” to a prisoner’s Eighth Amendment right to protection
against violence while in custody if the official “knows that [the]
inmat[e] face[s] a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it”
(internal quotation marks omitted));
Crawford-El v.
Britton,
523 U. S. 574, 592
(1998) (First Amendment shields prisoners from “retaliation for
protected speech”).[
Footnote 7]
What was controverted, instead, were the facts that could render
Jordan and Bright answerable for crossing a constitutional line.
Disputed facts relevant to resolving the officials’ immunity pleas
included: Was Jordan adequately informed, after the first assault,
of the identity of the assailant, see App. 4, and of Ortiz’s fear
of a further assault? What, if anything, could Jordan have done to
distance Ortiz from the assailant, thereby insulating her against a
second assault? See
id., at 4–5.[
Footnote 8] Did Bright place and retain Ortiz in
solitary confinement as a retaliatory measure or as a control
needed to safeguard the integrity of the
investigation? [
Footnote
9]
In sum, the qualified immunity defenses
asserted by Jordan and Bright do not present “neat abstract issues
of law.” See
Johnson, 515 U. S., at 317 (quoting 15A C.
Wright, A. Miller, & E. Cooper, Federal Practice and Procedure
§3914.10, p. 644 (1992)). To the extent that the officials urge
Ortiz has not proved her case, they were, by their own account,
obliged to raise that sufficiency-of-the-evidence issue by
postverdict motion for judgment as a matter of law under Rule
50(b). See Brief for Respondents 11. They did not do so. The Court
of Appeals, therefore, had no warrant to upset the jury’s decision
on the officials’ liability.
* * *
For the reasons stated, the
judgment of the Court of Appeals for the Sixth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Footnote 1
Compare,
e.g.,
Black v.
J. I. Case Co., 22 F. 3d 568, 570–571 (CA5 1994)
(declining to review denial of summary judgment after trial);
Price v.
Kramer, 200 F. 3d 1237, 1243–1244
(CA9 2000) (no exception where summary judgment rejected assertion
of qualified immunity), with
Goff v.
Bise, 173
F. 3d 1068, 1072 (CA8 1999) (denial of summary judgment based
on qualified immunity reviewable after trial on the merits); 316
Fed. Appx. 449, 453 (CA6 2009) (case below) (same).
Footnote 2
Ortiz maintained in her criminal prosecution
that she acted in retaliation for multiple incidents of domestic
violence to which she had been subjected over a span of several
years. 316 Fed. Appx., at 450.
Footnote 3
The accounts of the episodes-in-suit
described here recite facts the jury reasonably could have found
from the testimony presented at trial.
Footnote 4
As to Jordan, the District Court determined,
inter alia, that “a jury could reasonably find … that
Ortiz did inform Jordan of Schultz’s identity,” and that “Ortiz
made Jordan aware that [Ortiz] reasonably feared a further sexual
attack.” 211 F. Supp. 2d, at 925. Concerning Bright, the Court
noted that “[a] jury could reasonably find that Bright[’s] …
purported reason for placing Ortiz in security control was
pretextual.”
Id., at 928.
Footnote 5
Judge Daughtrey dissented; in her view, the
strength of the evidence against Jordan and Bright amply supported
the jury’s verdict. 316 Fed. Appx., at 456–457. Quoting
Kiphart v.
Saturn Corp., 251 F. 3d 573, 581
(CA6 2001), she observed that appellate courts “do not weigh the
evidence, evaluate the credibility of witnesses or substitute our
own judgment for that of the jury.” 316 Fed. Appx., at 457.
Footnote 6
Jordan and Bright contend that their failure
to file a Rule 50(b) motion cannot be the basis for overturning the
judgment of the Court of Appeals. Because Ortiz presented no
argument about the absence of a Rule 50(b) motion in her brief to
the Sixth Circuit or in her petition for certiorari, Jordan and
Bright argue, she has forfeited the objection. Jordan and Bright
are not well positioned to make this argument. They did not suggest
that Ortiz had forfeited her Rule 50(b) objection, or argue that
such an objection is forfeitable, until their merits brief to this
Court. Ordinarily we do not consider “a nonjurisdictional argument
not raised in a respondent’s brief in opposition to a petition.”
Baldwin v.
Reese,
541 U. S. 27, 34 (2004)
(internal quotation marks omitted).
In any case, we do not see how Ortiz can be
held to have forfeited her Rule 50(b) objection. The arguments
Jordan and Bright made in the Court of Appeals invited no such
objection. Jordan and Bright urged on appeal that the jury’s
verdict was “against the weight of the evidence.” Brief for
Defendants-Appellants in No. 06-3627 (CA6), pp. 21–43. A plea that
a verdict is “against the weight of the evidence,” of course, is
not equivalent to a plea that the evidence submitted at trial was
insufficient to warrant submission of the case to the jury. 11 C.
Wright, A. Miller, & E. Cooper, Federal Practice &
Procedure §2806, pp. 65–67 (2d ed. 1995 and Supp. 2010). A
determination that a verdict is against the weight of the evidence
may gain a new trial for the verdict loser, but never a final
judgment in that party’s favor.
Montgomery Ward & Co.
v.
Duncan,
311 U. S. 243, 250–251
(1940). Ortiz objected, accordingly, that Jordan and Bright had not
asked the District Court for a new trial and were therefore
“bar[red] [from] appeal on this ground.” Brief for
Plaintiff-Appellee in No. 06–3627 (CA6), p. 23. Ortiz thus
responded altogether appropriately to the arguments Jordan and
Bright made.
Footnote 7
The Court of Appeals held that Ortiz’s
complaint had not properly tied her claim against Bright to the
First Amendment. 316 Fed. Appx., at 455. “When an issue not raised
by the pleadings is tried by the parties’ express or implied
consent,” however, “it must be treated in all respects as if raised
in the pleadings.” Fed. Rule Civ. Proc. 15(b)(2). Bright, like
the District Court, recognized the First Amendment interests at
stake in Ortiz’s claim against her. See App. 11 (District Court, in
ruling on Rule 50(a) motion, inquired into Bright’s authority to
“regulat[e] speech of inmates”);
id., at 20 (Bright’s
counsel argued that Ortiz’s segregation “would not have had a
chilling effect” on her speech).
Footnote 8
Relevant to that matter, Bright testified at
trial that, had Jordan “reported the first incident immediately,
‘the proper people would have taken a role in protecting Mrs.
Ortiz.’ ” 316 Fed. Appx., at 457 (Daughtrey, J.,
dissenting).
Footnote 9
Apart from Bright’s testimony, the defense
produced no evidence that Ortiz “continually” talked about the
assaults or in any other way interfered with the investigation. See
Tr. 271, 397 (Bright’s testimony acknowledging absence of any
documentation regarding Ortiz’s conduct during investigation).
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