Lopez v. Bollweg et al

Filing 147

ORDER denying 143 Motion to Stay. It is further ordered that the Defendants shall immediately meet with the Plaintiff, complete the Joint Pretrial Order, and file it with the Court within 14 days of the filing date of this Order. Signed by Senior Judge David C Bury on 2/8/2019. (BAR)

1

WO

2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7
8

Hector Lopez,
Plaintiff,

9
10

Unknown Bollweg, et al.,

12

ORDER

v.

11

No. CV-13-00691-TUC-DCB

Defendants.

13
14

On October 30, 2018, the Ninth Circuit Court of Appeals issued an opinion denying

15

the Defendants’ interlocutory appeal of this Court’s denial of qualified immunity and

16

issued the Mandate on December 12, 2018. (Mandate (Doc. 141)); (Opinion (Doc. 141-

17

1)). The Defendants sought rehearing from the appellate court, which was denied on

18

December 4, 2018. (Response (Doc. 145) at 2.) Accordingly, the 90-day time period for

19

filing a writ of certiorari expires on March 4, 2019. (Motion (Doc. 143) at 2); Sup.Ct.

20

R.13(1) (90 days from entry of the judgment to petition for writ of certiorari).

21

Upon issuance of the Mandate, this Court returned the case to its active docket and

22

on December 18, 2018, ordered the parties to, within 30 days, file a Joint Pretrial Order

23

for the purpose of proceeding to trial. (Order (Doc. 142)). On January 16, 2019, the

24

Defendants filed a Motion to Stay, “pending the outcome of Defendants’ prospective

25

Petition for Writ of Certiorari to the Supreme Court . . ..” (Motion (Doc. 143) at 1.)

26
27
28

It is Defendants’ position that the Ninth Circuit panel’s decision affirming
this Court’s denial of summary judgment on the issue of qualified
immunity conflicts with City of Escondido v. Emmons, No. 17-1660, 2019
WL 113027 (U.S. Jan. 7, 2019), which reversed and remanded the Ninth
circuit upon finding that the Court of Appeals failed to conduct a proper
qualified-immunity analysis. See also Kisela v. Hughes, 584 U.S. __, __

(2018) (slip op., at 4) (“This Court has repeatedly told courts . . . not to
define clearly established law at a high level of generality.”); City of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (admonishing the
Ninth Circuit and directing the court not to define clearly established law at
a high level of generality).

1
2
3
4

Id.

5

The Plaintiff objects to the stay. Plaintiff notes that Kisela and Sheehan were cited

6

to the appellate court. (Response (Doc. 145) at 4.) Plaintiff complains that the Defendants

7

did not participate in preparing the Joint Pretrial Order, which Plaintiff filed with the Court

8

on January 17, 2019. (Notice (Doc. 144)).

9

The Court denies the stay. First, the City of Escondido, Calif. v. Emmons, 2019 WL

10

113027 (January 7, 2019) is not “new” legal authority. In Escondido, the Court framed its

11

holding as follows:

15

As we have explained many times: “Qualified immunity attaches when an
official's conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Kisela v. Hughes, . . . 138 S.Ct. 1148, 1152 . . . (2018) (per curiam ) (internal
quotation marks omitted); see District of Columbia v. Wesby, . . . 138 S.Ct.
577, 593 . . . (2018); White v. Pauly, . . . 137 S.Ct. 548, 551 . . . (2017) (per
curiam ); Mullenix v. Luna, . . . 136 S.Ct. 305, 308 . . . (2015) (per curiam ).

16

Id. at *2 (emphasis added). As noted above, the Ninth Circuit Court of Appeals was well

17

aware of Kisela and Sheehan when ruling on Defendants’ interlocutory appeal.

12
13
14

18

Second, the Defendants did not seek a stay of the Mandate pursuant to Fed. R. App.

19

P. 41(d) which provides: A party may move to stay the mandate pending the filing of a

20

petition for a writ of certiorari in the Supreme Court. The motion must be served on all

21

parties and must show that the petition would present a substantial question and that there

22

is good cause for a stay.” Defendants instead ask this Court for a stay yet submit that this

23

Court should not “assess the likelihood that its own ruling [and the ruling of the appellate

24

court] will survive appellate review” by the Supreme Court. (Reply (Doc. 146) at 5.) The

25

Court agrees. When the Ninth Circuit Court of Appeals affirmed this Court’s denial of

26

qualified immunity, it determined that this Court defined the clearly-established law at

27

issue here with specificity and not at a high level of generality. It remains for the Supreme

28

Court to review the adequacy of the appellate court’s assessment. This six-year old case

-2-

1

is before this Court for trial, until and unless certiorari is granted.

2

Accordingly,

3

IT IS ORDERED that the Motion to Stay (Doc. 143) is DENIED.

4

IT IS FURTHER ORDERED that the Defendants shall immediately meet with the

5

Plaintiff, complete the Joint Pretrial Order, and file it with the Court within 14 days of the

6

filing date of this Order.

7

Dated this 8th day of February, 2019.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-