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Leibel v. City of Buckeye

United States District Court, D. Arizona

April 9, 2019

Kevin Leibel, et al., Plaintiffs,
City of Buckeye, et al., Defendants.


          Dominic W. Lanza, United Slates District Judge


         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.


         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 ...

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