United States District Court, D. 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,
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
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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
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?
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.
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
Fed.Appx. 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.”).
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).
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 ...