Purdy et al v. Marinelli et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 25-cv-00556-SKC-TPO
ESTATE OF JAMES PURDY, et al.,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, et al.,
Defendants.
ORDER GRANTING MOTION TO CERTIFY DEFENDANTS’
INTERLOCUTORY APPEAL AS FRIVOLOUS
Before the Court is Plaintiffs’ Motion to Certify Defendants’ Interlocutory
Appeal as Frivolous. Dkt. 127. The Sheriff Defendants filed a Response. Dkt. 133. The
Court held a hearing on the Motion on December 1, 2025. Dkt. 138.
On October 28, 2025, the Sheriff Defendants filed a Notice of Interlocutory
Appeal (Dkt. 121), providing notice of their appeal to the Tenth Circuit of this Court’s
earlier partial denial of their Motion to Stay Discovery. See Dkts. 81, 119. Plaintiffs
now move the Court to certify the appeal as frivolous. They argue the Tenth Circuit
Court of Appeals lacks jurisdiction over Defendants’ appeal because the appeal solely
involves a discovery order which is a non-appealable collateral order. Defendants
respond that by denying the Motion to Stay, the Court denied the Sheriff Defendants’
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qualified immunity, and the denial of qualified immunity is appropriately reviewable
as an interlocutory appeal. They further argue “[s]uch an appeal permits the Sheriff
Employees to vindicate their presumptive entitlement to the protections of qualified
immunity in the face of discovery orders that are ‘effectively unreviewable on appeal
from a final judgment.’” Dkt. 133, p.4 (citing Mitchell v. Forsyth, 472 U.S. 511, 526-
27 (1985)).
LEGAL PRINCIPLES
“The filing of a notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982). “Because this divestiture of jurisdiction is
subject to abuse and can unreasonably delay trial,” the Tenth Circuit has recognized
“a procedure by which a district court may maintain jurisdiction over a defendant if
the court certifies that the defendant’s appeal is frivolous.” Langley v. Adams Cnty.,
Colo., 987 F.2d 1473, 1477 (10th Cir. 1993).
The 	Tenth 	Circuit 	has 	not 	established 	specific 	factors 	to 	analyze 	in
determining whether an appeal is frivolous for purposes of retaining jurisdiction. But
it has formulated a procedure for a district court to retain jurisdiction in the face of
an interlocutory appeal, which includes: “(1) after a hearing and, (2) for substantial
reasons given, (3) [the district court finds] the claim to be frivolous.” Stewart v.
Donges, 915 F.2d 572, 576 (10th Cir. 1990) (cleaned up). “An appeal is frivolous when
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the result is obvious, or the appellant’s arguments of error are wholly without merit.”
Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (cleaned up).
When, as here, an order is not final under 18 U.S.C. § 1291 for appeal purposes,
courts consider whether appellate jurisdiction lays based on the collateral order
exception under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). “[T]o
meet the Cohen exception to § 1291, an order must (1) conclusively determine the
disputed question, (2) resolve an important issue completely separate from the merits
of the action, and (3) be effectively unreviewable on appeal from a final judgment.”
Boughton v. Cotter Corp., 10 F.3d 746, 749 (10th Cir. 1993) (citation omitted). Unless
all three requirements are met, jurisdiction is not available under the collateral order
doctrine. Id.
ANALYSIS & FINDINGS
The appeal here fails at least on the first and third aspects of the Cohen test.
The Court’s partial denial of the Motion to Stay Discovery merely determined the
question of whether the Sheriff Defendants would participate in limited discovery
pending a ruling on their motion to dismiss, wherein these defendants raised
qualified immunity. The Court’s partial denial of the Motion to Stay Discovery did
not 	conclusively 	determine 	the 	Sheriff 	Defendants’ 	entitlement 	to 	qualified
immunity,1 which is how the Sheriff Defendants couch the issue in their Notice of
1 If the Court’s prior order had done so, there would be no need for Defendants’ follow-
on motion to dismiss based on qualified immunity.
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Appeal and what they argued during the hearing on the current Motion. To be sure,
the 	Court’s 	determination 	of 	the 	Sheriff 	Defendants’ 	entitlement 	to 	qualified
immunity will be reviewable on appeal once the Court rules on their motion to
dismiss. That motion has been fully briefed as of June 2025, and the Court will rule
on it in due course—the Court has neither declined to rule on the question of qualified
immunity nor deferred its ruling until trial. See, e.g., Workman v. Jordan, 958 F.2d
332 (1992) (district court’s order postponing ruling on defendant’s qualified immunity
defense until trial was immediately appealable).
Nor does the Court find its prior order, which contains no merits ruling on
qualified immunity, functionally deprives Defendants of rights secured by qualified
immunity despite the Court’s different approach from the district court in Arroyo.
Arroyo v. Myers, No. 23-1137, 2024 WL 1714490, at *2 (10th Cir. Apr. 22, 2024)
(appeal of non-interlocutory order denying motion to dismiss, without prejudice, but
with corresponding stay by district court pending resolution of the appeal). This is in
part because this case raises the novel issue of the inclusion of a state law claim which
mirrors Plaintiffs’ § 1983 claim but affords no qualified immunity defense to the
Sheriff Defendants. See Colo. Rev. Stat. § 13-21-131; Colo. Const. Art. II, Sections 20
and 25. Meaning these defendants will necessarily participate in discovery as
concerns this claim unless and until it is dismissed. And precedent makes clear that
discovery, or limited discovery, is not wholly excluded simply at a defendant’s
mention of qualified immunity. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)
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(Qualified immunity is a “limited entitlement not to stand trial or face the other
burdens of litigation.”) (emphasis added); Crawford-El v. Britton, 523 U.S. 574, 593
(1998) (stating its previous holding on that matter in Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982), did not “create an immunity from all discovery” but rather from “the
costs of broad-reaching discovery,” and recognizing that “limited discovery may
sometimes be necessary before the district court can resolve a motion for summary
judgment based on qualified immunity.”) (emphasis added); Currier v. Doran, 242
F.3d 905, 914, 916-17 (10th Cir. 2001) (Although qualified immunity protects public
officials “from the costs associated with defending against lawsuits, particularly
baseless ones, it does not follow that a defendant’s claim of qualified immunity can
always be resolved before at least some discovery is conducted.”).
Importantly, the Supreme Court has stated “[t]he crucial question . . . is not
whether an interest is important in the abstract; it is whether deferring review until
final judgment so imperils the interest as to justify the cost of allowing immediate
appeal of the entire class of relevant orders.” Mohawk Industries, Inc. v. Carpenter,
558 U.S. 100, 109 (2009) (emphasis added). As a Motion to Stay Discovery, the class
of relevant orders involved here are pretrial discovery orders. The Tenth Circuit has
made clear that pretrial discovery orders are not appealable on an interlocutory basis.
See, e.g., Boughton v. Cotter Corp., 10 F.3d 746, 749 (10th Cir. 1993) (“This circuit has
repeatedly held that discovery orders are not appealable under the Cohen [collateral
order] doctrine.”). To be sure, “the Supreme Court has issued increasingly emphatic
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instructions that the class of cases capable of satisfying this ‘stringent’ test should be
understood as ‘small,’ ‘modest,’ and ‘narrow.’” Mohamed v. Jones, 100 F.4th 1214,
1218 (10th Cir. 2024) (citing United States v. Wampler, 624 F.3d 1330, 1334 (10th
Cir. 2010) (collecting Supreme Court cases)).
Because the Sheriff Defendants appeal a pretrial discovery order on an
interlocutory basis, and because the Tenth circuit has repeatedly held that discovery
orders are not appealable under the Cohen doctrine, the Sheriff Defendants’ appeal
is frivolous.
* 	* 	*
For 	the 	reasons 	shared 	above, 	Plaintiffs’ 	Motion 	to 	Certify 	Defendants’
Interlocutory Appeal as Frivolous is GRANTED. The Court reassumes jurisdiction
over the matters in dispute.
IT IS FURTHER ORDERED the Sheriff Defendants’ Second Motion to Stay
Discovery and Related Proceedings is respectfully DENIED.
DATED: December 4, 2025
BY THE COURT:
___________________________
S. Kato Crews
United States District Judge
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