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 COUNTY DEFENDANTS' APPEAL AS
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
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,
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.
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?
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?
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 ...