(Slip Opinion)
`
`OCTOBER TERM, 2010
`
`1
`
`Syllabus
`
`NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`being done in connection with this case, at the time the opinion is issued.
`The syllabus constitutes no part of the opinion of the Court but has been
`prepared by the Reporter of Decisions for the convenience of the reader.
`See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`SUPREME COURT OF THE UNITED STATES
`
`Syllabus
`
`ORTIZ v. JORDAN ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`THE SIXTH CIRCUIT
`No. 09–737. Argued November 1, 2010—Decided January 24, 2011
`Petitioner Ortiz, a former inmate in an Ohio reformatory, brought a
`civil rights action under 42 U. S. C. §1983 seeking a judgment for
`damages against superintending prison officers. On two consecutive
`nights during her incarceration, Ortiz stated, she was sexually as-
`saulted by a corrections officer. Although she promptly reported the
`first assault, she further alleged, respondent Jordan, a case manager
`in her living unit, did nothing to ward off the second sexual assault,
`despite Jordan’s awareness of the substantial risk of that occurrence.
`Ortiz further charged that respondent Bright, a prison investigator,
`retaliated against Ortiz for her accusations by placing her, shackled
`and handcuffed, in solitary confinement in a cell without adequate
`heat, clothing, bedding, or blankets. The responses of both officers,
`she said, violated her right, safeguarded by the Eighth and Four-
`teenth Amendments, to reasonable protection from violence while in
`custody.
`Jordan and Bright moved for summary judgment on pleas of
`“qualified immunity.” The District Court, noting factual disputes
`material to Ortiz’s claims and the officers’ qualified immunity de-
`fenses, denied the summary judgment motion. The officers did not
`appeal that ruling. The case proceeded to trial, and the jury returned
`a verdict against Jordan and Bright. They sought judgment as a
`matter of law, pursuant to Federal Rule of Civil Procedure 50(a), both
`at the close of Ortiz’s evidence and at the close of their own presenta-
`tion. 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 en-
`tered judgment for Ortiz. On appeal, Jordan and Bright urged, inter
`alia, that the District Court should have granted their motion for
`
`

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`2
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`ORTIZ v. JORDAN
`
`Syllabus
`summary judgment based on their qualified immunity defense. The
`Sixth Circuit agreed and reversed the judgment entered on the jury’s
`verdict, holding that both defendants were sheltered from Ortiz’s suit
`by qualified immunity.
`Held: A party may not appeal a denial of summary judgment after a
`district court has conducted a full trial on the merits. A qualified
`immunity plea, not upheld at the summary judgment stage, may be
`pursued at trial, but at that stage, the plea must be evaluated in
`light of the character and quality of the evidence received in court.
`Ordinarily, orders denying summary judgment are interlocutory and
`do not qualify as “final decisions” subject to appeal under 28 U. S. C.
`§1291. Because a qualified immunity plea can spare an official not
`only from liability but from trial, this Court has recognized a limited
`exception to the categorization of summary judgment denials as non-
`appealable orders. Mitchell v. Forsyth, 472 U. S. 511, 525–526. The
`exception permits an immediate appeal when summary judgment is
`denied to a defendant who urges that qualified immunity shelters her
`from suit. Id., at 527. Such an immediate appeal is not available,
`however, when the district court determines that factual issues genu-
`inely in dispute preclude summary adjudication. Johnson v. Jones,
`515 U. S. 304, 313. Here, Jordan and Bright sought no immediate
`appeal from the denial of their summary judgment motion. Nor did
`they avail themselves of Rule 50(b), which permits the entry of judg-
`ment, postverdict, for the verdict loser if the court finds the evidence
`legally insufficient to sustain the verdict. Absent such a motion, 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. This Court need not address the officers’ argument
`that a qualified immunity plea raising a “purely legal” issue is pre-
`served for appeal by an unsuccessful summary judgment motion even
`if the plea is not reiterated in a Rule 50(b) motion. Cases fitting that
`bill typically involve disputes about the substance and clarity of pre-
`existing law. In this case, however, what was controverted was not
`the pre-existing law, but the facts that could render Jordan and
`Bright answerable under §1983, e.g., whether Jordan was adequately
`informed, after the first assault, of the assailant’s identity and of
`Ortiz’s fear of a further assault. Because the dispositive facts were
`disputed, the officers’ qualified immunity defenses did not present
`“ ‘neat abstract issues of law.’ ” Johnson, 515 U. S., at 317. To the ex-
`tent that Jordan and Bright 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). They did not do so. The Sixth Circuit, therefore,
`had no warrant to upset the jury’s decision on their liability. Pp. 6–
`
`

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`Cite as: 562 U. S. ____ (2011)
`
`3
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`Syllabus
`
`11.
`316 Fed. Appx. 449, reversed and remanded.
`GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
`C. J., and BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS,
`J., filed an opinion concurring in the judgment, in which SCALIA and
`KENNEDY, JJ., joined.
`
`

`
`Cite as: 562 U. S. ____ (2011)
`
`1
`
`Opinion of the Court
`
`NOTICE: This opinion is subject to formal revision before publication in the
`preliminary print of the United States Reports. Readers are requested to
`notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`ington, D. C. 20543, of any typographical or other formal errors, in order
`that corrections may be made before the preliminary print goes to press.
`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 confine-
`ment 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
`
`

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`2
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`ORTIZ v. JORDAN
`
`Opinion of the Court
`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 offi-
`cials 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. Fitzger-
`ald, 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 Ap-
`peals 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 deny-
`ing summary judgment after a full trial on the merits?1
`Our answer is no. The order retains its interlocutory
`——————
`1Compare, 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).
`
`

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`Cite as: 562 U. S. ____ (2011)
`
`3
`
`Opinion of the Court
`character as simply a step along the route to final judg-
`ment. 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 exist-
`ing at the time of the summary judgment motion. A quali-
`fied 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 im-
`munity defense, the court inquires whether the party
`opposing the motion has raised any triable issue barring
`summary adjudication. “[O]nce trial has been had,” how-
`ever, “the availability of official immunity should be de-
`termined 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 mo-
`tion 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
`
`

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`4
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`ORTIZ v. JORDAN
`
`Opinion of the Court
`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 as-
`sault against her husband,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.3 Ortiz fended off the assault, but Schultz re-
`turned later that day and threatened to “see [her] tomor-
`row,” 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 reas-
`signed 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
`——————
`2Ortiz maintained in her criminal prosecution that she acted in re-
`taliation for multiple incidents of domestic violence to which she had
`been subjected over a span of several years. 316 Fed. Appx., at 450.
`3The accounts of the episodes-in-suit described here recite facts the
`jury reasonably could have found from the testimony presented at trial.
`
`

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`Cite as: 562 U. S. ____ (2011)
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`5
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`Opinion of the Court
`name her assailant or provide any other information about
`the assault. Jordan did not immediately notify her supe-
`riors 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, de-
`spite 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 re-
`tract 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;4 nei-
`——————
`4As 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
`
`

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`6
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`ORTIZ v. JORDAN
`
`Opinion of the Court
`ther defendant appealed the District Court’s denial of
`summary judgment.
`The case proceeded to trial, and a jury returned a ver-
`dict 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 Dis-
`trict 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 455.5
`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.
`
`——————
`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.
`5Judge Daughtrey dissented; in her view, the strength of the evi-
`dence 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.
`
`

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`Cite as: 562 U. S. ____ (2011)
`
`7
`
`Opinion of the Court
`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 inter-
`locutory.” 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 defen-
`dant’s claim of right not to stand trial.” Id., at 527 (em-
`phasis 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 judg-
`ment 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, in-
`stant 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
`
`

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`8
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`ORTIZ v. JORDAN
`
`Opinion of the Court
`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 judg-
`ment for the verdict loser if the court finds that the evi-
`dence 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 218.6
`——————
`6Jordan 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 argu-
`ment 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. Mont-
`gomery Ward & Co. v. Duncan, 311 U. S. 243, 250–251 (1940). Ortiz
`objected, accordingly, that Jordan and Bright had not asked the Dis-
`trict 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.
`
`

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`
`9
`
`Opinion of the Court
`“[Q]uestions going to the sufficiency of the evidence are
`not preserved for appellate review by a summary judg-
`ment 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 Cir-
`cuit’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 neces-
`sarily “hinge[s] on the facts adduced at trial,” they main-
`tain, a purely legal issue can be resolved “with reference
`only to undisputed facts.” Brief for Respondents 16 (quot-
`ing 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 undis-
`puted facts.” Cases fitting that bill typically involve con-
`tests 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 contro-
`versy. 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
`——————
`
`Ortiz thus responded altogether appropriately to the arguments Jordan
`
`and Bright made.
`
`
`

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`10
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`ORTIZ v. JORDAN
`
`Opinion of the Court
`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”).7 What was contro-
`verted, 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 assail-
`ant, thereby insulating her against a second assault? See
`id., at 4–5.8 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? 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.
`
`——————
`7The 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 inter-
`ests 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).
`8Relevant 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).
`9Apart 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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`
`11
`
`Opinion of the Court
`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.
`
`

`
`Cite as: 562 U. S. ____ (2011)
`
`1
`
`THOMAS, J., concurring in judgment
`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 THOMAS, with whom JUSTICE SCALIA and
`JUSTICE KENNEDY join, concurring in the judgment.
`We granted certiorari to decide the narrow question
`whether a party may appeal an order denying summary
`judgment after a full trial on the merits. I agree with the
`Court that the answer is no. See ante, at 2–3. The Court
`also reaches beyond that question, however, to address the
`effect of Jordan and Bright’s failure to renew their motion
`for judgment as a matter of law under Federal Rule of
`Civil Procedure 50(b). I would limit our decision to the
`question presented and remand for consideration of any
`additional issues.
`As the Court concludes, a party ordinarily cannot appeal
`an order denying summary judgment after a full trial on
`the merits. See ante, at 7–8. Most such orders are not
`appealable at all, because they neither qualify as “final
`decisions” capable of appeal under 28 U. S. C. §1291 nor
`come within the narrow class of appealable interlocutory
`orders under §1292(a)(1). And for those that are appeal-
`able,* the time for filing an appeal will usually have run by
`the conclusion of the trial. See §2107(a) (providing that a
`
`——————
`*See Mitchell v. Forsyth, 472 U. S. 511, 524–530 (1985) (holding that
`some orders denying summary judgment constitute “ ‘final decisions’ ”
`under the collateral order doctrine).
`
`

`
`2
`
`ORTIZ v. JORDAN
`
`THOMAS, J., concurring in judgment
`notice of appeal in a civil case generally must be filed
`“within thirty days” after entry of the relevant judgment
`or order); Fed. Rule App. Proc. 4(a)(1)(A).
`This case is the ordinary case. Even if the order deny-
`ing summary judgment qualified under the collateral
`order doctrine as an appealable “final decision” under
`§1291, the time for filing that appeal expired long before
`trial. Ante, at 7–8. The Court of Appeals therefore lacked
`jurisdiction to review the order. I would reverse the
`judgment on that ground alone and remand for further
`proceedings.
`The majority proceeds to consider the additional ques-
`tion whether Jordan and Bright’s failure to file a Rule
`50(b) motion deprived the Court of Appeals of the
`“‘powe[r]’” to review the sufficiency of the trial evidence.
`See ante, at 3–4, 8 (quoting Unitherm Food Systems, Inc.
`v. Swift-Eckrich, Inc., 546 U. S. 394, 405 (2006)). The
`Court does so because it concludes that the Court of
`Appeals did not confine itself to the pretrial record and
`instead reviewed the trial evidence. Ante, at 3.
`I do not think it necessary to reach beyond the question
`presented. It is clear from the opinion that the appeals
`court reviewed the order denying summary judgment, and
`that was error. The Court of Appeals explained that
`“[a]lthough courts normally do not review the denial of a
`summary judgment motion after a trial on the merits,”
`this case “is an exception to th[at] rule.” 316 Fed. Appx.
`449, 453 (CA6 2009). And to support that conclusion, the
`court cited Goff v. Bise, 173 F. 3d 1068 (1999), in which
`the Eighth Circuit reviewed an order denying summary
`judgment. Finally, the Court of Appeals equated its re-
`view in this case to the review of an “interlocutory appea[l]
`of qualified immunity,” which suggests that the court saw
`itself as reviewing the interlocutory order denying sum-
`mary judgment. 316 Fed. Appx., at 453. Whether, in
`erroneously reviewing the order denying summary judg-
`
`

`
`Cite as: 562 U. S. ____ (2011)
`
`3
`
`THOMAS, J., concurring in judgment
`ment, the Court of Appeals considered the pretrial or full
`trial record is beside the point.
`I also think it unwise to reach the Rule 50 issue and the
`questions that follow. Ortiz’s opening brief at the merits
`stage focused on the question presented—whether the
`Court of Appeals lacked jurisdiction to review an order
`denying summary judgment. It was not until Jordan and
`Bright’s response brief in this Court, in which they argued
`that they had not actually appealed the order denying
`summary judgment, that the Rule 50 issues were ad-
`dressed at any length. This Court normally proceeds
`more cautiously. Moreover, the Court of Appeals did not
`address these issues at all, and we are ordinarily “a court
`of final review and not first view.” Adarand Constructors,
`Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam)
`(internal quotation marks omitted). This seems a good
`rule to follow in a case like this, which raises difficult and
`far-reaching questions of civil procedure.
`For these reasons, I would resolve only the question on
`which