Dalton v. Town of Silver City et al
Filing
141
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, IT IS THEREFORE ORDERED that Plaintiff's Motion to Certify Appeal as Frivolous 118 is DENIED (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
KARRI DALTON,
as the personal representative of the Estate of Nikki Bascom,
And Next Friend to M.B., a minor Child, and
A.C., a minor child,
Plaintiff,
vs.
Case No. 2:17-cv-01143-WJ-GJF
TOWN OF SILVER CITY, GRANT COUNTY,
CHIEF ED REYNOLDS, CAPTAIN RICKY VILLALOBOS,
THE ESTATE OF MARCELLO CONTRERAS,
DEPUTY JACOB VILLEGAS, SGT. FRANK GOMEZ,
AND DETECTIVE ADAM ARELLANO,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
CERTIFY SILVER CITY DEFENDANTS’ APPEAL AS FRIVOLOUS
THIS MATTER comes before the Court upon Plaintiff’s Motion to Certify Appeal as
Frivolous, filed on March 25, 2019 (Doc. 118). Having reviewed the parties’ pleadings and the
applicable law, the Court finds that Plaintiff’s motion is not well-taken and, therefore, is DENIED.
BACKGROUND
These claims arise out of Nikki Bascom’s murder by her ex-boyfriend, Silver City Police
Department (“SCPD”) Captain Marcello Contreras. Based on the events of the morning of April
21, 2016 and several incidents in the preceding months, the Silver City Defendants initiated an
internal investigation of Cpt. Contreras and placed him on leave but declined to criminally
investigate him. Grant County Sherriff’s Department (“GCSD”) officers Sgt. Gomez, Deputy
Villegas and Detective Arellano were also called out to respond to Ms. Bascom’s and Dr. Darrick
Nelson’s calls regarding Cpt. Contreras.
Later in the afternoon of April 21, Captain Contreras shot and killed Ms. Bascom, and then
himself. Plaintiff alleges that the Defendants treated Ms. Bascom differently from other domestic
violence victims and otherwise violated Ms. Bascom’s constitutional rights.
On behalf of Ms. Bascom’s estate and her minor children, Plaintiff filed this case under 42
U.S.C. § 1983, alleging, as relevant here, an Equal Protection claim. She alleges that Defendants
treated Ms. Bascom, a domestic violence victim whose assailant was an officer, differently from
other domestic violence victims.
The Court denied Defendants’ motions for summary judgment on some claims and denied
the individual Silver City defendants qualified immunity on the Equal Protection claim. The
individual Silver City Defendants filed an interlocutory appeal of that ruling. They framed the
issue on appeal as follows:
Did the District Court err in denying Appellants’ motion for summary judgment
seeking qualified immunity on Dalton’s Equal Protection claim where no Equal
Protection jurisprudence from this Court or the United States Supreme Court
squarely governs the particular facts of this case?
Doc. 133-1. United States Magistrate Judge Gregory J. Fouratt issued a well-reasoned order
granting a stay in this case pending the resolution of the qualified immunity appeal. See Doc. 124.
DISCUSSION
Usually, an interlocutory appeal divests this Court of jurisdiction to proceed against the
appealing defendants. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (“The
filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the
court of appeals and divests the district court of its control over those aspects of the case involved
in the appeal.”). Plaintiff, however, seeks to certify the appeal as frivolous, so that this case can
proceed alongside the appeal. See, e.g, Martinez v. Mares, 613 F. App'x 731, 735 (10th Cir. 2015)
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(if district court certifies appeal as frivolous, “the case may proceed in both forums, with the district
and appellate courts exercising concurrent jurisdiction.”).
A.
Legal Standard.
Trial court decisions denying public officials the defense of qualified immunity may be
subject to interlocutory appeal. Mitchell v. Forsyth, All U.S. 511, 528 (1985). At the summary
judgment stage of a claim for qualified immunity, it is generally the district court's “exclusive
job” to determine which facts a jury could reasonably find from the evidence presented to it by
the litigants. After doing so, the district court and the Court of Appeals may then consider the
abstract legal questions whether those facts suffice to show a violation of law and whether that
law was clearly established at the time of the alleged violation. Lewis v. Tripp, 604 F.3d 1221
(10th Cir. 2010).
While an appeal from a denial of qualified immunity will normally divest a district court
of jurisdiction, “[i]f the claim of immunity is a sham ... the notice of appeal does not transfer
jurisdiction to the court of appeals, and so does not stop the district court in its tracks.” Stewart v.
Donges, 915 F.2d 572, 577 (10th Cir. 1990) (emphasis in original); U.S. v. Taylor, 2009 WL
3348074, at 2 (D.N.M., September 29, 2009) (“A district court may retain jurisdiction over a case
when an interlocutory appeal is taken (1) if the pending matter is not involved in the appeal and
(2) if the district court makes written findings that the appeal is frivolous”); Apostol v. Gallion,
870 F.2d 1335, 1339 (7th Cir. 1989) (An appeal is frivolous if it is “a sham,” “baseless,” or
“unfounded.”). “An appeal is termed frivolous if the result is obvious, or the arguments of error are
wholly without merit.” Autorama Corp. v. Stewart, 802 F.2d 1284, 1288 (10th Cir. 1986) (citing
DeWitt v. Western Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983)). 22, 2014)
B.
Analysis.
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Plaintiff first argues that the appeal is frivolous, because the Tenth Circuit does not have
jurisdiction to hear the issues on interlocutory appeal. The Court disagrees.
The individual Silver City Defendants represent that they filed the interlocutory appeal to
determine “whether the facts as set forth by this Court illustrate a violation of clearly established
law regarding the Equal Protection clause…” Doc. 128, p. 5. The Silver City Defendants argue
this is a legal question regarding qualified immunity. Defendants assert they do not intend to
challenge any factual issues, but merely the Court’s application of Plaintiff’s version of the facts
to the governing law. Doc. 128, p. 10.
Therefore, the individual Silver City Defendants argue the Tenth Circuit has jurisdiction to
hear their argument that they are entitled to qualified immunity under the facts alleged by Plaintiff.
The Court agrees, and concludes it is not obvious that the Tenth Circuit lacks jurisdiction to hear
this legal argument. “Resolution of this purely legal question falls squarely within [the Tenth
Circuit’s] jurisdiction.” Martinez v. Mares, 613 F. App’x 731, 736-37 (10th Cir. 2015), citing
Poolaw v. Marcantel, 565 F.3d 721, 733 (10th Cir. 2009) (“Because the defendants assert that they
are entitled to qualified immunity on the undisputed facts, this is a question of law.”); Johnson v.
Martin, 195 F.3d 1208, 1214 (10th Cir. 1999) (“a defendant's appeal of the denial of a motion for
summary judgment is based on the argument that, even under the plaintiff's version of the facts,
the defendant did not violate clearly established law, then the district court's summary judgment
ruling is immediately appealable.”); Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir.
2013) (“To the extent an appeal turns on an abstract issue of law, [the Tenth Circuit] ha[s]
jurisdiction to review a denial of qualified immunity. That is, [the Tenth Circuit] has jurisdiction
to review (1) whether the facts that the district court ruled a reasonable jury could find would
suffice to show a legal violation, or (2) whether that law was clearly established at the time of the
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alleged violation.”); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) ( “denial of a claim of
qualified immunity, to the extent that it turns on an issue of law,” is subject to an interlocutory
appeal within the meaning of 28 U.S.C. § 1291.).
Plaintiff also argues that any appeal is frivolous, because Price-Cornelison v. Brooks, 524
F.3d 1103 (10th Cir. 2008) is squarely on point and controlling, and therefore the Tenth Circuit
will conclude that the individual Silver City Defendants violated clearly established. However,
Defendants argue that Price-Cornelison is not sufficiently factually on point, in light of more
recent United States Supreme Court cases requiring greater factual specificity in cases in order to
overcome the clearly established prong of qualified immunity. In other words, the individual
Defendants argue that Price-Cornelison is not sufficiently factually on point. The Court concludes
that the resolution of this issue is not obvious, and Defendants’ argument is not frivolous.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Certify Appeal as Frivolous
(Doc. 118) is DENIED.
______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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