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Home My WebLink About2021-1284 - Surat V. Klamser, Et Al - 003 - Docketing StatementAppellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DOCKETING STATEMENT Appeal Number 21-1284 Case Name Surat v. Klamser, et al Party or Parties Filing Notice of Appeal Or Petition Defendant Randall Klamser Appellee(s) or Respondent(s) Plaintiff Michaela Lynn Surat List all prior or related appeals in this court with appropriate citation(s). None I. JURISDICTION OVER APPEAL OR PETITION FOR REVIEW A. APPEAL FROM DISTRICT COURT 1. Date final judgment or order to be reviewed was entered on the district court docket: July 13, 2021 2. Date notice of appeal was filed: August 10, 2021 3. State the time limit for filing the notice of appeal (cite the specific provision of Fed. R. App. P. 4 or other statutory authority): Fed. R. App. P. 4(a)(1)(A) a. Was the United States or an officer or an agency of the United States a party below? No b. Was a motion filed for an extension of time to file the notice of appeal? If so, give the filing date of the motion, the date of any order disposing of the motion, and the deadline for filing the notice of appeal: No Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 2 4. Tolling Motions. See Fed. R. App. P. 4(a)(4)(A); 4(b)(3)(A). a. Give the filing date of any motion that tolls the time to appeal pursuant to Fed. R. App. P. 4(a)(4)(A) or 4(b)(3)(A): b. Has an order been entered by the district court disposing of any such motion, and, if so, when? 5. Is the order or judgment final (i.e. does it dispose of all claims by and against all parties)? See 28 U.S.C. § 1291. No (If your answer to Question 5 is no, please answer the following questions in this section.) a. If not, did the district court direct entry of judgment in accordance with Fed. R. Civ. P. 54(b)? When was this done? No b. If the judgment or order is not a final disposition, is it appealable under 28 U.S.C. § 1292(a)? No c. If none of the above applies, what is the specific legal authority for determining that the judgment or order is appealable? Appellant's entitlement to qualified immunity from Plaintiff's 42 U.S.C. § 1983 claim is immediately appealable pursuant to the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Workman v. Jordan, 32 F.3d 475, 478 (10th Cir. 1994). This Court has jurisdiction to hear Appellant's appeal of the District Court's denial of the Defendants' Motion for Summary Judgment raising the issue of qualified immunity because the appeal raises the legal issues of whether the undisputed facts and the facts taken in the light most favorable to the Plaintiff are sufficient to state a cognizable claim for a violation of her constitutional rights and whether a clearly established violation of Plaintiff's constitutional rights occurred. Johnson v. Jones, 515 U.S. 304, 309-11 (1995); Behrens v. Pelletier, 516 U.S. 299, 300- 5 (1996); Saucier v. Katz, 533 U.S. 194, 197 (2001). 6. Cross Appeals. Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 3 a. If this is a cross appeal, what relief do you seek beyond preserving the judgment below? See United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951, 958 (loth Cir. 2011) (addressing jurisdictional validity of conditional cross appeals). b. If you do not seek relief beyond an alternative basis for affirmance, what is the jurisdictional basis for your appeal? See Breakthrough Mgt. Group, Inc. v. Chukchansi Gold Casino and Resort, 629 F.3d 1173, 1196-98 and n.18 (loth Cir. 2010) (discussing protective or conditional cross appeals). B. REVIEW OF AGENCY ORDER (To be completed only in connection with petitions for review or applications for enforcement filed directly with the court of appeals.) 1. Date of the order to be reviewed: 2. Date petition for review was filed: 3. Specify the statute or other authority granting the Tenth Circuit Court of Appeals jurisdiction to review the order: 4. Specify the time limit for filing the petition (cite specific statutory section or other authority): C. APPEAL OF TAX COURT DECISION 1. Date of entry of decision appealed: 2. Date notice of appeal was filed: (If notice was filed by mail, attach proof of postmark.) 3. State the time limit for filing notice of appeal (cite specific statutory section or other authority): 4. Was a timely motion to vacate or revise a decision made under the Tax Court's Rules of Practice, and if so, when? See Fed. R. App. P. 13(a) Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 4 II. ADDITIONAL INFORMATION IN CRIMINAL APPEALS. A. Does this appeal involve review under 18 U.S.C. ' 3742(a) or (b) of the sentence imposed? B. If the answer to A (immediately above) is yes, does the defendant also challenge the judgment of conviction? C. Describe the sentence imposed. D. Was the sentence imposed after a plea of guilty? E. If the answer to D (immediately above) is yes, did the plea agreement include a waiver of appeal and/or collateral challenges? F. Is the defendant on probation or at liberty pending appeal? G. If the defendant is incarcerated, what is the anticipated release date if the judgment of conviction is fully executed? NOTE: In the event expedited review is requested and a motion to that effect is filed, the defendant shall consider whether a transcript of any portion of the trial court proceedings is necessary for the appeal. Necessary transcripts must be ordered by completing and delivering the transcript order form to the Clerk of the district court with a copy filed in the court of appeals. Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 5 III. GIVE A BRIEF DESCRIPTION OF THE NATURE OF THE UNDERLYING CASE AND RESULT BELOW. Plaintiff -Appellee Michaela Lynn Surat filed this action pursuant to 42 U.S.C. § 1983 alleging the Defendants violated her constitutional rights related to her arrest on April 6, 2017. Ms. Surat was found guilty after a criminal jury trial of violation of C.R.S. § 18- 8-103(1) (using or threatening to use physical force or violence against a peace officer or using any other means which creates a substantial risk of causing bodily injury to the peace officer or another) and C.R.S. § 18-8-104(1)(a) (using or threatening to use violence, force, physical interference or an obstacle to knowingly obstruct, impair, or hinder the enforcement of the penal law or the preservation of the peace by a peace officer acting under color of his or her official authority). In addition, the jury rejected Ms. Surat's assertion of self-defense. The District Court granted in part the Defendants' Motion to Dismiss. Plaintiff filed an Amended Complaint. The matter proceeded to discovery. Defendants filed a Motion for Summary Judgment which inter alia raised the defense of qualified immunity on behalf of Defendant Klamser. Defendant Klamser argued based on the impact of the Plaintiff's criminal convictions on her claims his actions in using force to arrest Plaintiff did not violate her constitutional rights and any alleged violation of Plaintiff's constitutional rights was not clearly established. The District Court denied the Defendants' Motion for Summary Judgment on July 13, 2021, including Defendant Klamser's qualified immunity. Defendant Klamser filed his Notice of Appeal on August 10, 2021. IV. IDENTIFY TO THE BEST OF YOUR ABILITY AT THIS STAGE OF THE PROCEEDINGS, THE ISSUES TO BE RAISED IN THIS APPEAL. You must attempt to identify the issues even if you were not counsel below. See loth Cir. R. 3.4(B). Defendant -Appellant seeks to challenge all aspects of the District Court's denial of Defendant Klamser's qualified immunity raised in the Defendants' Motion for Summary Judgment. The issues to be raised on appeal at the present time consist of the following. Defendant -Appellant raises the following issues: (i) Whether the District Court erred in failing to grant qualified immunity to Defendant Klamser based on the undisputed facts contained in the summary judgment record before the District Court. (ii) Defendant Klamser intends to argue both prongs of the qualified immunity inquiry before this Court on appeal. Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 6 (iii) Whether the District Court erred in analyzing Defendant Klamser's qualified immunity defense in light of the impact of the criminal convictions of the Plaintiff and the criminal jury's rejection of Plaintiff's claim of self-defense related to her interactions with Defendant Klamser. Defendant -Appellant reserves the right to raise any appropriate issue in their Opening Brief. See loth Cir. R. 3.4(B); Nato Indian Nation v. Utah, 76 Fed. Appx. 854, 856 n. 3 (loth Cir. 2003). V. ATTORNEY FILING DOCKETING STATEMENT: Name: _Andrew D. Ringel, Esq. Telephone: (303) 628-3300 Firm: Hall & Evans, L.L.C. Email Address: ringela@hallevans.com Address: 1001 17th Street, Suite 300, Denver, Colorado 80202 s/ Andrew D. Ringel Signature August 25, 2021 Date Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 7 NOTE: The Docketing Statement must be filed with the Clerk via the court's Electronic Case Filing System (ECF). Instructions and information regarding ECF can be found on the court's website, www.cal0.uscourts.gov. The Docketing Statement must be accompanied by proof of service. The following Certificate of Service may be used. CERTIFICATE OF SERVICE I, Andrew D. Ringel , hereby certify that on [attorney for appellant/petitioner] August 10, 2021 , I served a copy of the foregoing Docketing Statement, to: all counsel of record in this case as follows: David A. Lane, Esq. dlane@kln-law.com Andrew McNulty, Esq. amcnulty@kln-law.com John R. Duval, Esq. jduval@fcgov.com the last known address/email address, by Email [state method of service] Appellate Case: 21-1284 Document: 010110566768 Date Filed: 08/25/2021 Page: 8 s/ Andrew D. Ringel Signature August 25, 2021 Date Andrew D. Ringel, Esq. Mark S. Ratner, Esq. Hall & Evans, L.L.C. 1001 17th Street, Suite 300 Denver, Colorado 80202 Tel: (303) 628-3300 Fax: (303) 628-3368 Email: ringela@hallevans.com ratnerm@hallevans.com