Holly L. Cardy v. Steven D. Barnes

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3519
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HOLLY L. CARDY
v.
STEVEN D. BARNES; ERIC R. HEIL; CHAD
FINDLAY; CITY OF FRANKLIN, PENNSYLVANIA;
RYAN ASHBAUGH; BOROUGH OF SUGARCREEK
CHAD FINDLAY,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 07-cv-106)
District Judge: Honorable Sean J. McLaughlin
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Submitted Under Third Circuit LAR 34.1(a)
December 17, 2009
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges.
Filed: December 18, 2009
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
We have jurisdiction to review a summary judgment order denying qualified
immunity “only to the extent that it turns on an issue of law.” Ziccardi v. City of Phila.,
288 F.3d 57, 61 (3d Cir. 2002) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
In this case, the accounts of the incident underlying the claim of excessive force and the
competing assertion of qualified immunity raise material issues of fact. As explained by
the District Court:
We have an alleged eyewitness ... [a]nd he testified that the plaintiff was –
that she was picked up approximately a foot off the ground and violently
slammed to the ground. At which time he claimed he audibly heard her
ankle bone snap. ... In contrast, Officer Findlay testified that he performed a
controlled takedown maneuver, which did not involve violently slamming
the plaintiff to the ground as she claimed. But involved a twisting
procedure whereby the plaintiff was taken down to her stomach.
(App. at A6-A7.) Later the Court stated, “the fundamental flaw in the defendants’
qualified immunity analysis is that [it is] based upon the factual premise or predicate ...
that the takedown occurred in a controlled and non-violent manner. That contention,
however, ... is hotly disputed by the plaintiff.” (App. at A12-A13.)
Because there is a fundamental factual dispute pertaining to the question of
qualified immunity, we lack jurisdiction and, accordingly, will dismiss the appeal.

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