J.M. et al v. City of Milwaukee et al

Filing 106

ORDER signed by Judge J.P. Stadtmueller on 5/1/2017: DENYING 100 Plaintiffs' Motion to Certify Defendants' Appeal as Frivolous or Forfeited; VACATING the 5/9/2017 Final Pretrial Conference, 5/15/2017 Jury Trial, and other related deadli nes in the Court's Trial Scheduling Order (Docket #17); GRANTING 103 Defendants' Motion to Stay Proceedings in the District Court; DENYING as moot 104 Parties' Joint Motion to Amend the Deadline for Submitting Hard Copies of Exhibits for Trial; and STAYING these proceedings until the mandate of the Court of Appeals is received in appellate case no. 17-1854. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J.M. and
ESTATE OF DONTRE HAMILTON,
Plaintiffs,

Case No. 16-CV-507-JPS

v.
CITY OF MILWAUKEE and
CHRISTOPHER E. MANNEY,

ORDER

Defendants.
On April 12, 2017, the Court denied Defendants’ motion for summary
judgment on, inter alia, their qualified immunity defense. (Docket #94 at
45-48). Defendants are entitled to take an immediate appeal of the Court’s
ruling on that issue, without seeking leave, because “it is a final decision on
the defendant’s right not to stand trial and, as such, a collateral order.”
Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013); see Mitchell v. Forsyth,
472 U.S. 511, 524-530 (1985) (describing collateral orders). Defendants gave
notice of such an appeal on April 24, 2017. (Docket #95).
Later that day, Plaintiffs filed a motion “to certify Defendants’ appeal
as frivolous and/or forfeited.” (Docket #100 at 1) (capitalization altered). They
cite the Seventh Circuit’s Apostol opinion, which permits a district court to
certify an appeal as frivolous if it finds a claim of qualified immunity “is a
sham.” Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). Plaintiffs argue
that the Court found disputed issues of fact on the qualified immunity issue,
which normally precludes appellate review. Guiterrez, 722 F.3d at 1009.
Plaintiffs push this principle too far, as Guiterrez explains:
A district court’s finding that there are genuine issues of
material fact does not always preclude appellate review. [The
Supreme Court’s opinion in Johnson v. Jones, 515 U.S. 304
(1995)] prohibits us from reviewing the record to determine

whether the district court erred in finding that a genuine issue
of material fact exists, . . . and so we may not make conclusions
about which facts the parties ultimately might be able to
establish at trial[.] But Johnson does not prohibit us from
considering the abstract legal question of whether a given set
of undisputed facts demonstrates a violation of clearly
established law. In reviewing this purely legal question, we
take the facts as the district court assumed them when denying
summary judgment, . . . or in a light most favorable to the
plaintiff, the nonmovant[.]
Id. Defendants may not contest the Court’s determinations regarding
disputes of fact. They are free, however, to assert that even when the facts are
viewing favorably to Plaintiffs, they warrant qualified immunity. Whatever
the likelihood of success in this endeavor, it is no sham.
Plaintiffs further contend that Defendants have forfeited an appeal of
qualified immunity. They rely on Behrens v. Pelletier, 516 U.S. 299 (1996),
stating that “[w]hen a defendant seeks to immediately appeal a qualified
immunity summary judgment decision on a question of law as authorized by
Behrens, the defendant must have based their argument to the district court
upon the version of the facts that the district court found sufficiently
supported for purposes of summary judgment. 516 U.S. at 313.” (Docket
#100 at 4). The Court finds no such distinct holding in Behrens. Rather, it
simply echoes the Guiterrez discussion quoted above. Id. at 312-13. Plaintiffs
are free to present their forfeiture argument to the Court of Appeals, but the
Court will not rely on it here to deny an otherwise valid appeal.
Plaintiffs’ instant motion must be denied; Defendants’ appeal will
continue. Additionally, the Court will grant a stay of this matter in this
Court, as Defendants have requested. (Docket #103). There is no logic in
proceeding to trial, currently scheduled in less than three weeks, if the Court

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of Appeals ultimately finds any merit in Defendants’ appeal. See Allman v.
Smith, 764 F.3d 682, 685-86 (7th Cir. 2014). This stay will be lifted when the
mandate is issued by the Court of Appeals. If a trial is still required, it will be
completed within 90 days following remand. The parties and their counsel
should be guided accordingly.
Accordingly,
IT IS ORDERED that Plaintiffs’ motion to certify Defendants’ appeal
as frivolous or forfeited (Docket #100) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this matter’s May 9, 2017 final
pretrial conference, May 15, 2017 jury trial, and all other related deadlines
(Docket #17) be and the same are hereby VACATED;
IT IS FURTHER ORDERED that Defendants’ motion to stay
proceedings in the district court (Docket #103) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that the joint motion to amend the
deadline for submitting hard copies of exhibits for trial (Docket #104) be and
the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that these proceedings be and the same
are hereby STAYED until the mandate of the Court of Appeals is received
in appellate case number 17-1854.
Dated at Milwaukee, Wisconsin, this 1st day of May, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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