govinfo:USCOURTS-cod-1_14-cv-00745-8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No.   14-cv-00745-WYD-MJW
JAMES DURKEE,
Plaintiff,
v.
SHERIFF JOHN MINOR, in his official and individual capacities;
SERGEANT RON HOCHMUTH, in his individual capacity; and
JOHN DOES #1-5, in their individual capacities,
Defendants.
ORDER
THIS MATTER is before the Court in connection with Plaintiff’s Motion to Certify
Appeal as Frivolous filed February 26, 2016, and Defendants’ Motion to Vacate Setting
of Final Trial Preparation Conference and Trial filed April 15, 2016.  I first address the
Motion to Certify Appeal as Frivolous, which is fully briefed.
Plaintiff claims in its motion that the Court should certify as frivolous Defendants’
appeal of my Order of December 8, 2015, that denied summary judgment on Plaintiff’s
First, Second, and Third Claims for Relief because the denial was based on disputed
issues of fact and sufficiency of the evidence and not on an issue of law, such as
whether the law was clearly established at the time Plaintiff’s rights were violated. 
Plaintiff argues that a defendant’s claim of entitlement to qualified immunity is subject to
interlocutory appeal only if the order “turns on an issue of law”, Mitchell v. Forsyth, 472 
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U.S. 511, 530 (1985), and that the interlocutory appeal based on the Court’s ruling as to
disputed facts is frivolous. 
I deny Plaintiff’s motion.  Defendants assert that their appeal challenges the
Court’s legal findings on both prongs of the qualified immunity analysis: (1) whether the
facts taken in the light most favorable to the Plaintiff constitute a violation of the
Plaintiff’s substantive due process rights under the Fourteenth Amendment and (2)
whether clearly established law put Defendants on notice that they could be found liable
for their conduct.  Defendants have thus represented that there are issues of law that
are properly before the Tenth Circuit in connection with the qualified immunity analysis,
even though Plaintiff may disagree with this characterization.         
I now turn to Defendant’s Motion to Vacate Setting of Final Trial Preparation
Conference and Trial.  That motion is granted.  The interlocutory appeal divests this
Court of jurisdiction over those aspects of the case involved in the appeal, including the
issue of whether Defendants are entitled to qualified immunity.  Stewart v. Donges, 915
F.2d 572, 574 (10th Cir. 1990).  Accordingly, a trial setting is not appropriate until the
interlocutory appeal is resolved.
In conclusion, it is
ORDERED that Plaintiff’s Motion to Certify Appeal as Frivolous (ECF No. 76) is
DENIED.  It is
FURTHER ORDERED that Defendant’s Motion to Vacate Setting of Final Trial
Preparation Conference and Trial (ECF No. 80) is GRANTED.  
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Dated:  April 28, 2016.
BY THE COURT:
/s/ Wiley Y. Daniel                  
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE
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