UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1223

CHRISTY J. RHOADES, in her capacity as the Administratrix and Personal Representative of the Estate of Philip Jontz Rhoades,

Plaintiff - Appellee,

v.

DAVID FORSYTH, in his official and individual capacity,

Defendant - Appellant,

and

COUNTY COMMISSION OF MARION COUNTY; JOHN DOE, in his official and individual capacity,

Defendants.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, District Judge. (1:18-cv-00186-TSK)

Submitted: November 13, 2020 Decided: November 18, 2020

Before GREGORY, Chief Judge, and WYNN and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion. Tiffany R. Durst, Nathan A. Carroll, PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC, Morgantown, West Virginia, for Appellant. J. Bryan Edwards, CRANSTON & EDWARDS, PLLC, Morgantown, West Virginia; Benjamin J. Hogan, BAILEY & GLASSER LLP, Morgantown, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Christy J. Rhoades (Plaintiff), in her capacity as the Administratrix and Personal

Representative of the Estate of Philip Jontz Rhoades (Rhoades), filed a civil action against

David Forsyth (Forsyth) and other defendants, alleging a Fourth Amendment excessive

force claim pursuant to

and several related claims arising from Forsyth’s

fatal shooting of Rhoades in the course of a vehicle pursuit. Forsyth sought summary

judgment on the basis of qualified immunity. The district court denied summary judgment

as to Forsyth’s qualified immunity claims, concluding that a genuine issue of material fact

existed with respect to the circumstances surrounding Rhoades’ and Forsyth’s fatal

encounter.

In this interlocutory appeal, Forsyth seeks to challenge the denial of summary

judgment on the issue of qualified immunity. In her response, Plaintiff asserts that we lack

jurisdiction to consider the arguments Forsyth raises on appeal. We are persuaded by

Plaintiff’s jurisdictional arguments and therefore dismiss the appeal for lack of jurisdiction.

Qualified immunity “protects government officials from liability for civil damages,

provided that their conduct does not violate clearly established statutory or constitutional

rights within the knowledge of a reasonable person.” Danser v. Stansberry,

(4th Cir. 2014). This standard “gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions,” thereby “protect[ing] all

but the plainly incompetent and those who knowingly violate the law.” Ashcroft v. al-

Kidd,

(2011) (internal quotation marks omitted). In considering a

qualified immunity claim, courts engage in a two-step inquiry, determining: (1) whether

3 the government official’s acts violated the plaintiff’s constitutional rights; and (2) whether

the right at issue was clearly established at the time of the violation. Pearson v. Callahan,

(2009).

“Because qualified immunity is an immunity from suit rather than a mere defense

to liability[,] it is effectively lost if a case is erroneously permitted to go to trial.”

(internal quotation marks omitted). Thus, although a district court’s order denying

summary judgment generally is not immediately appealable, an order denying summary

judgment on the basis of qualified immunity is subject to immediate appellate review under

the collateral order doctrine. Williams v. Strickland,

(4th Cir. 2019).

In this posture, however, we have jurisdiction to review the district court’s order “only to

the extent that the court’s decision turned on an issue of law.” Cox v. Quinn,

(4th Cir. 2016) (internal quotation marks omitted). “[O]ur review of such orders is

limited to a narrow legal question: if we take the facts as the district court gives them to us,

and we view those facts in the light most favorable to the plaintiff, is the defendant still

entitled to qualified immunity?” Williams,

(footnote omitted).

Put differently, “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.” Witt v. W. Va.

State Police, Troop 2,

(4th Cir. 2011) (internal quotation marks omitted);

see Iko v. Shreve,

(4th Cir. 2008). “Although an appellate court can, on

interlocutory appeal, decide purely legal questions relating to qualified immunity, it may

not reweigh the record evidence to determine whether material factual disputes preclude

4 summary disposition.” Witt,

(internal quotation marks omitted). “Whether

we agree or disagree with the district court’s assessment of the record evidence . . . is of no

moment in the context of this interlocutory appeal.” Culosi v. Bullock,

(4th Cir. 2010). Rather, “we consider only the facts as the district court viewed them as

well as any additional undisputed facts.” Cox,

(internal quotation marks

omitted); see Waterman v. Batton,

(4th Cir. 2005) (discussing standard).

In evaluating the scope of our jurisdiction, “we must . . . examine the parties’

appellate arguments to ensure that we only consider those legal questions formally raised

on appeal.” Iko,

. “This step is particularly important in interlocutory

appeals regarding qualified immunity, because a party can so focus its appellate argument

on factual disputes that it fails to raise a single legal question appropriate for appellate

review.” Witt,

(internal quotation marks omitted); see also Johnson v.

Jones,

(1995) (recognizing jurisdictional defect in interlocutory appeal

from denial of qualified immunity where court cannot “find any . . . separate [legal]

question—one that is significantly different from the fact-related legal issues that likely

underlie the plaintiff’s claim on the merits” (internal quotation marks omitted)).

In his opening brief, Forsyth purports to challenge the district court’s legal

conclusions with respect to both prongs of the qualified immunity analysis. However, our

careful review of the opening brief reveals that Forsyth’s legal arguments hinge repeatedly,

and fundamentally, on a view of the facts contrary to that reached by the district court in

evaluating his summary judgment motion. Cf. Winfield v. Bass,

, 530 (4th

Cir. 1997) (en banc) (recognizing that we may properly exercise jurisdiction “over a claim

5 that there was no violation of clearly established law accepting the facts as the district

court viewed them” (emphasis added)). Because we are unable to accept Forsyth’s view

of the facts given the case’s current procedural posture, we conclude that we lack

jurisdiction to consider these arguments. See Johnson,

; Witt,

.

Forsyth does not fairly challenge the district court’s specific legal conclusions

independent of these factual disputes, precluding us from considering those legal issues

over which we could appropriately exercise jurisdiction at this juncture. See United States

v. Bartko,

(4th Cir. 2013) (recognizing that issues not raised in opening

brief are waived). Likewise, insofar as Forsyth attempts in his reply brief to reframe his

arguments to avoid the factual disputes that strip us of our jurisdiction, those discrete issues

are not properly before us. See Grayson O Co. v. Agadir Int’l LLC,

(4th

Cir. 2017) (recognizing that issues raised for first time in reply brief are waived). Finally,

while Forsyth raises new theories in his opening brief, asserting that his exercise of lethal

force was justified notwithstanding the central disputed fact identified by the district

court—whether Rhoades’ vehicle was moving toward Forsyth when Forsyth fatally shot

him—those arguments also are not properly before us. See In re Under Seal,

(4th Cir. 2014) (“[A]bsent exceptional circumstances, we do not consider issues raised

for the first time on appeal.” (alterations and internal quotation marks omitted)). In short,

our review of the parties’ submissions convinces us that Forsyth has not “raise[d] a single

legal question appropriate for appellate review.” See Witt,

(internal

quotation marks omitted).

6 Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

DISMISSED

7