United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United Slates District Judge
INTRODUCTION
This is
a lawsuit brought on behalf of C.L., an autistic child who
was 14 years old at the time of the events in question,
against the City of Buckeye and three members of the Buckeye
Police Department (collectively, “Defendants”).
The claims stem from an incident in July 2017 in which one of
the Defendants, Officer David Grossman (“Officer
Grossman”), is alleged to have slammed C.L. against a
tree, wrestled C.L. to the ground, and then pinned C.L. down
while attempting to handcuff him. The complaint further
alleges that C.L., who was screaming in agony during the
incident, sustained serious injuries requiring surgery. There
is no suggestion C.L. committed a crime before this encounter
occurred. Instead, the complaint alleges that (1) Officer
Grossman initially approached C.L., who was standing in a
park, because he suspected C.L.'s hand movements might be
indicative of drug use, (2) C.L. twice explained to Officer
Grossman that he was simply “stimming”
(i.e., self-stimulating with a piece of string,
which is a common technique used by individuals with autism
to calm their nerves), and (3) Officer Grossman proceeded to
slam, wrestle, and pin C.L. despite this explanation.
On
January 30, 2019, the Court issued a 21-page order in which
it granted in part, and denied in part, Defendants'
motion to dismiss (the “Order”). (Doc. 40.) Among
other things, the Court concluded that Officer Grossman was
not entitled to qualified immunity (at least at the
motion-to-dismiss stage) as to Counts 1 and 2 of the
complaint, which are claims under 42 U.S.C. § 1983 for
false arrest and excessive force. The Court did, however,
dismiss several other counts. The dismissal of those counts
means that five counts now remaining pending: (1) Count 1,
the § 1983 false arrest claim against Officer Grossman;
(2) Count 2, the § 1983 excessive force claim against
Officer Grossman; (3) Count 5, an Americans With Disabilities
Act (“ADA”) false arrest claim against the City;
(4) Count 7, a state-law battery claim against Officer
Grossman; and (5) Count 9, a state-law negligent
training/supervision claim against all Defendants except
Officer Grossman.
After
the Order was issued, Officer Grossman filed a notice of
appeal concerning the denial of qualified immunity. (Doc.
41.) Additionally, Defendants have filed a motion to stay
until Officer Grossman's interlocutory appeal is
resolved. (Doc. 42.) The stay request has two components:
first, Officer Grossman seeks a stay as to the counts
asserted against him; and second, Defendants collectively
request a stay of the entire case. (Id.) Meanwhile,
Plaintiffs have filed an opposition to the stay request (Doc.
47) and, separately, filed their own notice of appeal, which
purports to challenge the portions of the Order dismissing
certain other counts in the complaint (Doc. 44).
As
explained below, Defendants' motion to stay will be
granted in part and denied in part. Specifically, Officer
Grossman's request for a stay as to Counts 1 and 2 will
be granted because his interlocutory appeal is not frivolous.
Although the Court continues to believe its decision to deny
qualified immunity as to Counts 1 and 2 was correct-indeed,
this order identifies several additional cases, with
analogous facts, in which requests for qualified immunity
were rejected-the arguments raised by Officer Grossman are
not “wholly without merit” and “so baseless
. . . that nothing can be said on the other side.”
However, Officer Grossman is not entitled to a stay as to
Count 7, because it is a state-law claim not subject to a
qualified-immunity defense, and Defendants' request to
stay the entire case pending the resolution of Officer
Grossman's appeal will be denied.
DISCUSSION
In
their motion, Defendants request a stay of all proceedings
pending the resolution of Officer Grossman's
interlocutory appeal. First, Officer Grossman argues he is
entitled to a stay of proceedings related to the issues he
appealed. He explains that, when interlocutory review of an
order is sought, “the district court is automatically
divested of jurisdiction” over the particular issues
involved in the appeal, unless the court certifies the appeal
is frivolous. (Doc. 42 at 3.) He argues his appeal isn't
frivolous. (Id.) Second, Defendants contend the
Court should stay the remaining proceedings (not subject to
the appeal) because the stay factors established in Nken
v. Holder, 556 U.S. 418 (2009), weigh in their favor.
(Id. at 11-14.)
In
their response, Plaintiffs argue that Officer Grossman's
appeal is frivolous and that the Court shouldn't stay the
remaining proceedings because the Nken factors weigh
in their favor. (Doc. 47.) Plaintiffs also obliquely note
that they have filed a cross-appeal, appealing the dismissal
of several of their causes of action. (Id. at 3
n.2).
In
their reply, Defendants argue that, because Plaintiffs filed
a notice of cross-appeal, the Court is divested of
jurisdiction over all aspects of this case and therefore must
stay all proceedings. (Doc. 48 at 1-4.)
I.
Stay As To Officer Grossman
A.
Legal Standard
“[T]he
filing of a notice of interlocutory appeal divests the
district court of jurisdiction over the particular issues
involved in that appeal.” City of Los Angeles,
Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886
(9th Cir. 2001). However, if the district court finds that
the interlocutory appeal is “frivolous, ” it
“may certify, in writing, that defendants have
forfeited their right to pretrial appeal, and may proceed
with trial.” Chuman v. Wright, 960 F.2d 104,
104 (9th Cir. 1992). A district court may deem an appeal
frivolous only if it is “wholly without merit.”
United States v. Kitsap Physicians Serv., 314 F.3d
995, 1003 n.3 (9th Cir. 2002) (citation omitted). In other
words, a frivolous appeal is one that is “so baseless
that it does not invoke appellate jurisdiction such as when
the disposition is so plainly correct that nothing can be
said on the other side.” Dagdagan v. City of
Vallejo, 682 F.Supp.2d 1100, 1116 (E.D. Cal. 2010)
(citation omitted).
B.
Analysis
Officer
Grossman seeks interlocutory review of the Court's
decision to deny him qualified immunity. The only two causes
of action subject to qualified immunity are Count 1 (false
arrest) and Count 2 (excessive force), both arising under 42
U.S.C. § 1983. Thus, the Court is automatically divested
of jurisdiction over those claims unless it certifies that
Officer Grossman's interlocutory appeal is
frivolous.[1]
Although
the Court stands by the Order and continues to believe it
correctly denied Officer Grossman's motion to dismiss,
his appeal is not frivolous. As Officer Grossman correctly
states, denial of qualified immunity is only appropriate
where an official's conduct violates “clearly
established constitutional rights of which a reasonable
officer would be aware ‘in light of the specific
context of the case.'” Keates v. Koile,
883 F.3d 1228, 1235 (9th Cir. 2018) (citation omitted). And
Officer Grossman ...