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Home My WebLink About2021-1284 - Surat V. Klamser, Et Al - 007 - Motion To Dismiss AppealAppellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT PLAINTIFF-APPELLEE'S MOTION TO DISMISS APPEAL MICHAELLA SURAT, Case No. 21-1284 Plaintiff — Appellee, v. RANDALL KLAMSER, in his individual capacity, et al., Defendant — Appellant. Plaintiff -Appellee, by and through her counsel, KILLMER, LANE & NEWMAN, LLP, respectfully submits this Motion to Dismiss, pursuant to 10th Cir. R. 27.3(A)(1)(a). In support, Plaintiff -Appellee states as follows: 1. Certificate of Conferral Pursuant to loth Cir. R. 27.1, Plaintiff-Appellee's counsel has informed Defendant-Appellant's counsel that Plaintiff -Appellee will be filing this motion to dismiss; Defendant-Appellant's counsel has stated Defendant -Appellant intends to continue with the appeal. 2. Introduction And Procedural History Plaintiff -Appellee seeks to dismiss for lack of jurisdiction the interlocutory appeal filed by Defendant -Appellant Randall Klamser ("Defendant Klamser") after 1 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 2 the district court denied his motion for summary judgment based on disputed issues of material fact. Although Defendant Klamser asserted qualified immunity in his summary judgment motion, the district court concluded that an interlocutory appeal was frivolous because clearly established law prohibited Defendant Klamser's conduct under Plaintiff-Appellee's version of the facts and numerous disputed issues of material fact existed. The district court thus certified Defendant Klamser's interlocutory appeal as frivolous on September 2, 2021. Nevertheless, defense counsel has informed Plaintiff-Appellee's counsel of Defendant Klamser's intent to persist with this appeal. Because the district court's denial of qualified immunity to Defendant Klamser was based on the existence of disputed facts, this Court lacks jurisdiction over this appeal, and it must be dismissed. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (loth Cir. 2009); Valdez v. Motyka, 804 F. App'x 991, 994 (loth Cir. 2020). 2.1 The District Court denied Defendant Klamser's motion for summary judgment and assertion of qualified immunity. This case involves the use of wildly excessive force against Plaintiff - Appellee by Defendant Klamser, which was captured on a video that went viral. See VIDEO: Colorado police slam female college student to ground, ABC7NEws, (April 13, 2017), available at: https://abc7news.com/police-video-violent-student- female-colorado-fort-collins/1869942/. Despite this, Defendant Klamser moved for summary judgment. The District Court denied that motion. 2 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 3 In its July 13, 2021, Order Denying Defendants' Motion For Summary Judgment, the District Court resolved the issue of qualified immunity, going into great detail while explaining the numerous material factual disputes between the parties' respective versions of the facts. Surat v. Klamser, No. 19-cv-0901-WJM- NRN, 2021 U.S. Dist. LEXIS 129950, at *3-6 (D. Colo. July 13, 2021). The District Court specifically relied on these disputed issues of material fact as the basis for denying Defendant Klamser's motion for summary judgment, holding that that "issues of fact exist as to whether Klamser used excessive force[,]" "[Plaintiff -Appellee] Surat [] presented evidence that the amount of force used to subdue her was objectively unreasonable[,]" and "` [s]ummary judgment motions may not be granted on any excessive force claims under § 1983 for which any genuine issue of material fact remains — regardless of whether the potential grant would arise from qualified immunity or from a showing that the officer merely had not committed a constitutional violation."' Id at **9-10 (quoting Bridges v. Yeager, 352 F. App'x 255, 258 (loth Cir. 2009) and citing Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (loth Cir. 2002)). Because of this, the Court held that summary judgment was inappropriate. Id. Accordingly, the district court denied Defendant Klamser's assertion of qualified immunity. 2.2 The District Court certified Defendant Klamser's interlocutory appeal as frivolous. Despite it being clear that this Court's denial of his summary 3 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 4 judgment motion was premised on disputed issues of material fact, on August 10, 2021, Defendant Klamser filed this appeal.' Any appeal of the District Court's Order is inherently premised on disputed issues of fact given the clearly established law that exists governing the claim at issue. The Tenth Circuit, however, obviously lacks jurisdiction to review these types of fact -based appeals, a jurisdictional limitation repeatedly reiterated to litigants in this context, and one that renders this appeal frivolous. Valdez v. Motyka, 804 F. App'x 991, 994 (loth Cir. 2020); Ralston v. Cannon, 884 F.3d 1060 (loth Cir. 2018); Fancher v. Barrientos, 723 F.3d 1191, 1200 (10th Cir. 2013); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 700-01 (l0th Cir. 1995). The District Court recognized as much in an order certifying Defendant Klamser's appeal as frivolous. [Doc. #010110570683]. The District Court held that Defendant "Klamser's interlocutory appeal is a thinly- veiled and poorly -reasoned attempt to thwart the Court's clear determination that disputed issues of fact preclude a grant of summary judgment in his favor." Id., p. 6. It did so because "clear questions of disputed fact exist as to whether Surat posed an immediate 1 Defendant Fort Collins is not entitled to claim, nor did claim, qualified immunity, and as such there is no appellate jurisdiction over an interlocutory appeal from the order denying Fort Collins' motion for summary judgment. Accordingly, Defendant Klamser's notice of appeal cannot encompass Plaintiff's claim against Fort Collins, and it does not provide this Court with a basis to stay the proceedings on that claim. 4 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 5 threat to Klamser's safety" and "[a]s a result... that this genuine issue of material fact precluded a finding of qualified immunity in Klamser's favor." Id., p. 5. 3. Standard of Review "An appeal is frivolous when the result is obvious, or the appellant's arguments of error are wholly without merit." Braley v. Campbell, 832 F.2d 1504, 1510 (loth Cir. 1987) (citation omitted). In the context of an interlocutory appeal of a denial of a qualified immunity motion, such an appeal is frivolous if the denial was based wholly on a finding of disputed material facts. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Supreme Court has set forth the underlying policy reasons for disallowing interlocutory appeals, such as the one filed by Defendant Klamser, as a matter of course, particularly in civil rights cases. First, "[a]n interlocutory appeal can make it more difficult for trial judges to do their basic job —supervising trial proceeding." Johnson v. Jones, 515 U.S. 304, 309 (1995). Frivolous interlocutory appeals of qualified immunity summary judgments based solely on "the existence, or nonexistence, of a triable issue of fact [are] the kind of issue that trial judges, not appellate judges, confront almost daily... [a]nd, to that extent, interlocutory appeals are less likely to bring important error -correcting benefits...than where purely legal matters are at issue." Id. at 316. The Court further noted that appeals premised on questions of fact, like the 5 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 6 one filed by Defendant Klamser in this case, "consume inordinate amount of appellate time." Id. This is particularly a problem in "constitutional tort cases" like this one, where resolving factual controversies "require[s] reading a vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials." Id. In counting these concerns, the Court concluded that "a district court's summary judgment order that, though entered in a `qualified immunity' case, determines only a question of `evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial... is not appealable." Id. at 312. "This court has no interlocutory jurisdiction to review whether or not the pretrial record sets forth a genuine issue of fact for trial." Ralston, 884 F.3d at 1066. It is well established that in interlocutory appeals of a summary judgment order denying qualified immunity, "the scope of such appeals is limited to `purely legal' challenges to the district court's ruling on whether a plaintiff's legal rights were clearly established, and cannot include attacks on the court's `evidence sufficiency' determinations about whether there are genuine disputes of fact," as here. Sevier, 60 F.3d at 700-01(quoting Johnson, 515 U.S. at 319-320); see also Morris v. Noe, 672 F.3d 1185, 1189 (loth Cir. 2012) ("[W]e take, as given, the facts that the district court assumed when it denied summary judgment."). Review is limited to whether the district court "mistakenly identified clearly established law...given...the facts that the district court assumed when it denied summary 6 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 7 judgment for that (purely legal) reason." Sevier, 60 F.3d at 700; see also Mitchell, 472 U.S. at 530; King v. Patt, 525 F. App'x 713, 718 (loth Cir. 2013); Blossom v. Yarbrough, 429 F.3d 963, 966 (loth Cir. 2005). 4. Argument As the District Court properly recognized, Defendant Klamser's appeal is nothing more than a thinly -veiled attempt to delay this case from going to the fact - finder. Defendant Klamser's attack on the district court's order denying his motion for summary judgment is inherently premised on disputed issues of fact, given the clearly established law that exists governing the claim at issue. Any attempt by Defendant Klamser to package his appeal as an appeal of legal issues is frivolous. This appeal does not raise cognizable matters for the appellate court to address and further briefing on the matter would be a waste of judicial and party time and resource. By proceeding with an interlocutory appeal that is based on factual disputes rather than abstract issues of law, Defendant Klamser ignores recent Supreme Court and Tenth Circuit authority that clearly indicates this Court cannot review the types of issues raised by this appeal. The Tenth Circuit lacks jurisdiction to review these types of fact -based appeals, a jurisdictional limitation repeatedly reiterated to litigants in this context, and one which renders this appeal frivolous. See Valdez v. Motyka, 804 F. App'x 991, 994 (loth Cir. 2020); Ralston v. Cannon, 7 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 8 884 F.3d 1060 (loth Cir. 2018); Fancher v. Barrientos, 723 F.3d 1191, 1200 (10th Cir. 2013); Perry v. Durborow, 892 F.3d 1116, 1120 (loth Cir. 2018); Fancher v. Barrientos, 723 F.3d 1191, 1199-1200 (loth Cir. 2013); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 700-01 (loth Cir. 1995). 4.1 Defendant Klamser's appeal is based on disputed facts. This case contains several material disputes of facts that must be determined by the jury. As made clear by the district court's decisions in its order on summary judgment and its order granting the motion to certify this appeal as frivolous, the court's denial of Defendant Klamser's assertion of qualified immunity was based on a finding that, drawing all inferences in Plaintiff-Appellee's favor, Plaintiff - Appellee presented sufficient evidence on which a jury could find Defendant Klamser violated Plaintiff-Appellee's Fourth Amendment rights. The Supreme Court has long made clear that no interlocutory appellate jurisdiction will lie when the district court's denial of qualified immunity was based on a finding of material issues of fact. See Johnson, 515 U.S. at 317; Behrens v. Pelletier, 516 U.S. 299, 313 (1996). This Court has repeatedly reinforced this principle in subsequent opinions. For example, in Ralston, this Court found that the defendants' appeal of a qualified immunity denial amounted to a challenge to the district court's determinations of evidentiary sufficiency. 884 F.3d 1060. Accordingly, this Court held that it lacked jurisdiction over that 8 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 9 interlocutory appeal. Id. In doing so, the Court issued a warning to all attorneys considering this type of appeal, stating "the jurisdictional limitation at issue in [the] appeal has been in place since the Supreme Court's decision in Johnson," which "made clear that allowing appeals from district court determinations of evidentiary sufficiency simply does not advance the goals of the qualified -immunity doctrine in a sufficiently weighty way to overcome the delay and expenditure of judicial resources that would accompany such appeals." Id. at 1067. Here, as the district court found, the law of excessive force is extremely well -established when applied in the type of context relevant here. Surat v. Klamser, No. 19-cv-0901-WJM-NRN, 2021 U.S. Dist. LEXIS 129950, at *10-13 (D. Colo. July 13, 2021) (citing inter alia Graham v. Connor, 490 U.S. 386, 396 (1989); Morris v. Noe, 672 F.3d 1185, 1188 (loth Cir. 2012); Long v. Fulmer, 545 F. App'x 757, 759-60 (loth Cir. 2013); Roe v. City of Cushing, 13 F.3d 406 (loth Cir. 1993); Shannon v. Koehler, 616 F.3d 855, 858-63 (8th Cir. 2010); Blankenhorn v. City of Orange, 485 F.3d 463, 477-79 (9th Cir. 2007); Smith v. City of Troy, Ohio, 874 F.3d 938, 945-46 (6th Cir. 2017)). After reviewing considerable evidence, the district court found multiple facts that, if viewed in Plaintiff's favor, satisfy the Graham factors. Id. Frankly, Plaintiff -Appellee cannot imagine any appeal by Defendant Klamser that would not amount to an attack on the determination that a jury could reasonably find that Defendant Klamser's conduct constituted a violation of Plaintiff-Appellee's constitutional rights —the very basis on which he is prohibited 9 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 10 from bringing an interlocutory appeal. Defendant Klamser cannot possibly argue that slamming a small woman to the concrete face -first is not clearly unconstitutional. Instead, Defendant Klamser almost certainly will reframe the facts to relitigate his version of what happened in an effort to turn factual disputes into purported "legal issues," an approach that violates the standards for interlocutory review. Cady v. Walsh, 753 F.3d 348, 360-61 (1st Cir. 2014) (finding no jurisdiction where the "defendants' briefing before [the appellate court] plainly dispute[d] both the facts identified by the magistrate judge as well as the inferences proffered by the plaintiff and deemed reasonable by the magistrate judge"); Thompson v. Grida, 656 F.3d 365, 368 (6th Cir. 2011) ("The [defendants] have failed to satisfy the requirement that they concede the most favorable view of the facts to [the plaintiff]. This is precisely the sort of factual dispute over which this Court lacks jurisdiction."). Put simply, any alleged "legal issue" will be dependent upon genuine issues of material facts. Accordingly, Defendant Klamser's appeal of the district court's denial of qualified immunity does not rely on whether the law was clearly established but rather is inextricably intertwined with factual issues, thereby "flaunt[ing] the jurisdictional limitations" set out by the Supreme Court. Ralston, 884 F.3d at 1067-68. 10 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 11 4.2 Any attempt to argue the law was not clearly established would be frivolous. As the district court made very clear in its ruling granting Plaintiff- Appellee's motion to certify this appeal as frivolous, there are several cases from the Supreme Court this Court, especially Graham and Morris, that make it manifestly apparent that Defendant Klamser's conduct, if Plaintiff-Appellee's version of the facts is accepted as true, constitutes a violation of clearly established law. Both the Supreme Court and this Court have long emphasized that "general statements of the law are not inherently incapable of giving fair and clear warning to officers." Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). "It is not necessary...for plaintiffs to find a case with exact corresponding factual circumstances; defendants are required to make reasonable applications of the prevailing law to their own circumstances." Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (loth Cir. 1999) (citation omitted). Fundamentally, this Court has stressed that courts "cannot find qualified immunity wherever [they have] a new fact pattern." Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (l0th Cir. 2007). Instead, "the right can be clearly established if a precedent applies with obvious clarity." Lowe v. Raemisch, 864 F.3d 1205, 1210 (loth Cir. 2017) (citation omitted). "After all, some things are so obviously unlawful that they don't require detailed explanation." Id. (citation omitted). 11 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 12 As the district court found, based on the version of the facts Plaintiff - Appellee presented in the summary judgment briefing, Morris and other cases from this Court "place the conclusion that [Defendant Klmmser] acted unreasonably in these circumstances `beyond debate."' Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting Ashcroft v al -Kidd, 563 U.S. 731, 741 (2011)). Defendant Klamser's conduct "plainly [does] not qualify as the type of bad guesses in gray areas that qualified immunity is designed to protect." Sims v. Labowitz, 855 F.3d 254, 264 (4th Cir. 2018) (citation omitted). Because the precedent cited by the district court applied to Defendant Klamser's conduct with "obvious clarity," Lowe, Raemisch, 864 F.3d at 1210, any attempt by Defendant Klamser to argue that the district court erred in its conclusion regarding the clearly established prong of the qualified immunity analysis would be utterly lacking in merit. For this reason, it is impossible to imagine that Defendant Klamser's appeal will properly accept the facts identified by the district court or Plaintiff -Appellee, or view the facts and their inferences in the light most favorable to Plaintiff - Appellee. In deciding qualified immunity questions, "courts [must] define the `clearly established' right at issue on the basis of the specific context of the case," and "courts must take care not to define a case's context in a manner that imports genuinely disputed factual propositions." Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (citation omitted) ("[The Supreme Court's] qualified -immunity cases 12 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 13 illustrate the importance of drawing inferences in favor of the nonmovant, even when... a court decides only the clearly -established prong of the standard."). This Court has rejected an attempt to "nominally frame" a challenge to the facts "as a legal issue" when a defendant merely asserts contrary facts to what the district court found and then relies on such facts to distinguish the case at issue from prior cases, which is undoubtedly what Defendant Klamser's appeal will do. Fancher, 723 F.3d at 1199-1200. Accordingly, because Defendant Klamser's arguments on appeal cannot be anything other than an "attack on the[] [factual] conclusions of the district court, this Court lacks jurisdiction to consider" them. Id. at 1200. 5. Conclusion For all the reasons stated herein, Plaintiff -Appellee respectfully requests that this dismiss Defendant Klamser's interlocutory appeal. Respectfully submitted this 27t' day of September 2021. KILLMER, LANE & NEWMAN, LLP s/Andrew McNulty David Lane Andy McNulty 1543 Champa Street, Suite 400 Denver, Colorado 80202 Phone: (303) 571-1000 Facsimile: (303) 571-1001 dlane@kln-law.com amcnulty@kln-law.com 13 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 14 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of September 2021, I filed the foregoing via CM/ECF, which will generate a notice and service on the following: Mark Ratner Hall & Evans, LLC 1001 Seventeenth Street, Ste 300 Denver, CO 80202 303-628-3492 ratnerm@hallevans.com Counsel for Defendants s/Jamie Akard Paralegal 14 Appellate Case: 21-1284 Document: 010110582464 Date Filed: 09/27/2021 Page: 15 CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1) all required privacy redactions have been made; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) The digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, WebRoot Secure Anywhere for Windows, version 9.0.24.49 updated September 2, 2021 and according to the program are free of viruses. s/Andy McNulty Andy McNulty 15