Estate of Paul Heenan v. City of Madison et al

Filing 177

ORDER setting hearing on plaintiff's motion to certify appeal for June 5th at 9:00 a.m., response due by 5:00 p.m. June 4th. Signed by District Judge William M. Conley on 06/03/2015. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
THE ESTATE OF PAUL HEENAN, by
Personal Representative John Heenan,
Plaintiff,

ORDER

v.
13-cv-606-wmc
THE CITY OF MADISON and MADISON
POLICE OFFICER STEVEN HEIMSNESS,
In his individual capacity,
Defendants.
The court is in receipt of a flurry of filings by the parties. The first two motions
were precipitated by defendant Steven Heimsness’s notice today of interlocutory appeal
from this court’s denial of his motion for summary judgment on qualified immunity
grounds.

In the first motion, plaintiff, the Estate of Paul Heenan, seeks an order

certifying Heimsness’s appeal as frivolous pursuant to Apostol v. Gallion, 870 F.2d 1335
(7th Cir. 1989).

(Dkt. #173.)

Defendant Heimsness may have until end of day

tomorrow, June 4, 2015, to respond to that motion. As part of his response, Heimsness
should provide a precise formulation of the legal issue that he intends to raise on appeal,
including necessarily an adoption of factual disputes resolved in favor of plaintiff. The
court will hold a hearing on that motion on Friday, June 5, 2015, at 9:00 a.m.
In the second motion, the City seeks a stay of all proceedings pending appeal,
including the claim directed against it. (Dkt. #176.) For the reasons articulated by the
Seventh Circuit in Allman v. Smith, 764 F.3d 682, 685-86 (7th Cir. 2014), the City’s
request for a stay -- assuming that the court declines to enter an order certifying

Heimsness’s appeal as frivolous -- has merit. Nonetheless, the court will provide plaintiff
an opportunity to respond to the City’s motion. Such response is also due by end of day
tomorrow, June 4, 2015.
Finally, if the court were to grant plaintiff’s motion for certification of the appeal
as frivolous, and this case proceeds immediately to trial, then the court must also address
a letter from plaintiff’s counsel dated June 2, 2015. (Dkt. #169.) The court will treat
the letter as a motion for clarification, although it essentially is seeking an advisory
opinion from this court. Since the City of Madison continues to have an interest in the
outcome of all phases of this lawsuit, the court is in no position to advise that all, or even
some, of the City’s pretrial submissions are rendered moot by its stipulation to confess
liability should Heimsness be found liable, except perhaps those motions that solely
concern the presentation of evidence to the jury on the City’s liability under Monell. The
court would encourage the parties to meet and confer as to which of these motions have
been rendered moot by the court’s summary judgment opinion and the City’s stipulation.
Failing that, both sides will need to decide independently which of the pending motions
have arguably been rendered moot, and respond accordingly.
Accordingly,
IT IS ORDERED that:
1) Plaintiff’s motion for clarification with respect to the status of the City’s pretrial submissions (dkt. #169) is DENIED;
2) Defendant Steven Heimsness may have until end of day Thursday, June 4,
2015, to respond to plaintiff’s motion to certify appeal, the response including
the information described above;

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3) Plaintiff may have until end of day Thursday, June 4, 2015, to respond to the
City’s motion to stay; and
4) A hearing on plaintiff’s motion to certify and the City’s motion to stay will be
held on Friday, June 5, 2015, at 9:00 a.m.
Entered this 3rd day of June, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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