Dalton v. Town of Silver City et al
Filing
147
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson DENYING 138 Opposed Motion to Certify Defendants' Notice of Appeal (Doc. 129) as Frivolous. (mag)
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 COUNTY DEFENDANTS’ APPEAL AS FRIVOLOUS
THIS MATTER comes before the Court upon Plaintiff’s Motion to Certify Appeal as
Frivolous, filed on April 29, 2019 (Doc. 138). 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, including 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 granted in part and denied in part the County Defendants’ motion for summary
judgment. In relevant part, the Court denied Defendant Gomez qualified immunity on the Equal
Protection claim. The Court also denied Defendant Gomez’s subsequent motion to reconsider.
The County Defendants filed an interlocutory appeal of that ruling. They framed the issue on
appeal as follows:
1. Whether Defendant Gomez Is Entitled To Qualified Immunity? [sic]
2. Does the Tenth Circuit recognize an equal protection claim that involves
discretionary decision-making after Engquist v. Or. Dep't of Agric., 553 U.S. 591,
128 S. Ct. 2146 (2008), under the facts presented herein?
3. Is the Plaintiff required to prove other victims of domestic violence would have
received greater protection from Defendant Gomez than Plaintiff?
Doc. 138-1.
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
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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) (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) (internal citations omitted).
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. 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
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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)).
B.
Analysis.
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 County
Defendants represent that they filed the interlocutory appeal to determine “[w]hether Defendant
Gomez is entitled to qualified immunity.” Doc. 138-1, p. 5. The County Defendants assert they
will not seek to challenge the facts, but only whether Plaintiff’s facts show a violation of clearly
established law. Doc. 144, p. 4; p. 9 (“these Defendants are fully aware that, for purposes of
their appeal, the facts are as the District Court has set them forth…”).
The Tenth Circuit likely has jurisdiction to hear Defendant Gomez’s argument that he is
entitled to qualified immunity under the facts alleged by Plaintiff. “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)
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whether that law was clearly established at the time of the 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.). Although the Court has determined there is a genuine dispute of material fact, that
does not necessarily divest the Tenth Circuit of jurisdiction to hear the purely legal issue of
qualified immunity.
Plaintiff also argues that Defendant Gomez’s request to apply a class-of-one theory to the
Equal Protection claim, pursuant to Engquist v. Oregon Dept. of Agr., 553 U.S. 591 (2008), is
legally frivolous. The County Defendants did not argue in the summary judgment briefing or in
the motion for reconsideration that the Equal Protection should be analyzed as a class-of-one
claim. See docs. 29, 54, 96. Defendant Gomez first raised this argument in the reply to the
motion to reconsider. Doc. 102. The Court declined to consider this new argument in a reply
brief. Doc. 125, p. 12-13. If Defendant Gomez wishes to raise this argument on appeal, it is up
to the Tenth Circuit to decide whether to consider it. That decision appears to be discretionary,
therefore the Court cannot say that raising a class-of-one theory is frivolous.
Plaintiff also argues that any appeal is frivolous, because Price-Cornelison v. Brooks, 524
F.3d 1103 (10th Cir. 2008) and Watson v. City of Kansas City, Kan., 857 F.2d 690 (10th Cir.
1988) are squarely on point and controlling, and therefore the Tenth Circuit will conclude that
Defendant Gomez violated clearly established law. However, Defendant Gomez argues that
Price-Cornelison and Watson are 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. The Court concludes that the
resolution of this legal issue is not obvious, and Defendant Gomez’s argument is not frivolous.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Certify Appeal as Frivolous
(Doc. 138) is DENIED.
______________________________________
CHIEF UNITED STATES DISTRICT JUDGE
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