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Dalton v. Town of Silver City

United States District Court, D. New Mexico

June 20, 2019

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,
v.
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 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.”).

         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 ...


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