Detreville v. Gurevich et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-00638-PAB-MEH
KEVIN DETREVILLE,
Plaintiff,
v.
SERGEY GUREVICH, and
JULIE WEINHEIMER,
Defendants.
ORDER
This matter comes before the Court on Defendants’ Motion to Stay Proceedings
[Docket No. 96]. On November 25, 2024, plaintiff Kevin Detreville filed a response.
Docket No. 98. On December 5, 2024, defendants Sergey Gurevich and Julie
Weinheimer filed a reply. Docket No. 99.
I. 	BACKGROUND
On September 30, 2024, the Court granted in part and denied in part defendants’
motion for summary judgment and denied Mr. Detreville’s partial motion for summary
judgment. Docket No. 89. In its September 30 Order, the Court denied Mr. Detreville’s
partial motion for summary judgment on his unlawful arrest claim, First Amendment
retaliation claim, and malicious prosecution claim against Officer Gurevich. Id. at 12–
33. Mr. Detreville did not move for summary judgment on his claims against Officer
Weinheimer. Id. at 12 n.9. On Mr. Deterville’s unlawful arrest claim, the Court found
that Officer Gurevich was entitled to qualified immunity because, although Officer
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Gurevich lacked probable cause to arrest Mr. Detreville, he did have arguable probable
cause. Id. at 23–24. Thus, the Court denied summary judgment for Mr. Detreville on
his unlawful arrest claim. Id. The Court found that, while Mr. Detreville established that
he was engaged in constitutionally protected activity, id. at 26, and suffered the requisite
injury, id. at 27, on his First Amendment retaliation claim, it was disputed whether
Officer Gurevich’s arrest of Mr. Detreville was substantially motivated by Mr. Detreville’s
exercise of his First Amendment speech rights. Id. at 28. Therefore, the Court denied
summary judgment for Mr. Detreville on his First Amendment retaliation claim. Id. at
28–29. On Mr. Detreville’s malicious prosecution claim, the Court found that it was
undisputed that Officer Gurevich caused Mr. Detreville’s confinement, the original action
terminated in favor of Mr. Detreville, there was no probable cause to arrest Mr.
Detreville, and that Mr. Detreville sustained damages. Id. at 29. However, the Court
found that it was disputed whether Officer Gurevich was motivated by malice. Id. at 32–
33. Therefore, the Court denied Mr. Detreville’s motion for summary judgment on his
malicious prosecution claim. Id. For Mr. Deterville’s First Amendment and malicious
prosecution claims, Mr. Detreville requested that, if the Court declined to find for Mr.
Detreville on his claims as a matter of law, the Court could nonetheless rule on those
discrete elements of the claims that have been established as a matter of law. Id. at 29
n.23. Because Mr. Detreville raised this request for the first time in his reply brief, the
Court declined to rule that discrete elements of Mr. Detreville’s claims were established
as a matter of law for purposes of trial. Id.
Further, in the Court’s September 30 Order, the Court found that defendants
were entitled to qualified immunity on Mr. Detreville’s unlawful arrest claim and granted
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summary judgment for defendants. Id. at 34. For Mr. Detreville’s First Amendment
retaliation claim, the Court found that is it was disputed whether defendants’ decision to
arrest Mr. Detreville was substantially motivated by Mr. Detreville’s exercise of his First
Amendment speech rights. Id. at 36. The Court also denied summary judgment for
Officer Gurevich on Mr. Detreville’s malicious prosecution claim against Officer
Gurevich because it was disputed whether Officer Gurevich acted with malice. Id. at 37.
The Court denied summary judgment for Officer Gurevich on Mr. Detreville’s equal
protection claim against him, id. at 42–43, but granted summary judgment for Officer
Weinheimer on Mr. Detreville’s equal protection claim against her. Id. at 46. The Court
found that defendants waived their qualified immunity defense on Mr. Detreville’s First
Amendment retaliation claim, malicious prosecution claim, and equal protection claim
because they failed to invoke the defense in their motion for summary judgment. Id. at
33 n.28.
On October 24, 2024, Mr. Detreville filed a motion for reconsideration, Docket
No. 90, asking the Court to clarify “whether the jury will be instructed that Mr. Detreville
was arrested without probable cause,” given the Court’s holding that Officer Gurevich
had arguable probable cause, but not probable cause, to arrest Mr. Detreville and was
thus entitled to qualified immunity on Mr. Detreville’s unlawful arrest claim. Docket No.
90 at 4. In his motion, Mr. Detreville also asks the Court to reconsider its denial of his
summary judgment motion and its refusal to find discrete elements of Mr. Detreville’s
claims were established as a matter of law. Id. at 5–8. Mr. Detreville argues that he did
not wait until his reply brief to request this relief. Id.
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On October 28, 2024, defendants appealed the Court’s denial of their motion for
summary judgment. Docket No. 91. Defendants argue on appeal that the Court erred
in finding that defendants were not entitled to qualified immunity on Mr. Detreville’s First
Amendment retaliation claims against defendants and in finding that Officer Gurevich
was not entitled to qualified immunity on Mr. Detreville’s equal protection and malicious
prosecution claims against Officer Gurevich. Detreveille v. Gurevich, Case No. 24-1427
(10th Cir. Nov. 12, 2024), Docket No. 5 at 4–5.
II. 	ANALYSIS
Defendants claim that the Court was “divested of jurisdiction” when defendants
filed their appeal and that proceedings in this case were “automatically stayed.” Docket
No. 96 at 2. Nonetheless, defendants filed their motion to stay “out of an abundance of
caution.” Id. Mr. Detreville argues that, although “the filing of a notice of appeal usually
divests the district court of jurisdiction,” the Court should nonetheless retain jurisdiction
to rule on Mr. Detreville’s motion for reconsideration. Docket No. 98 at 2. Mr. Detreville
also argues that the Court “should certify Defendants’ appeal as frivolous and permit the
case to proceed to trial.” Id.
An interlocutory appeal from an order denying summary judgment based on
qualified immunity “divests the district court of jurisdiction.” Stewart v. Donges, 915
F.2d 572, 576 (10th Cir. 1990). Therefore, when defendants filed their interlocutory
appeal, arguing that they are entitled to qualified immunity on specific claims, the Court
was divested of its jurisdiction. Moreover, in cases where the defendant appeals on
qualified immunity grounds, “the divestiture of jurisdiction brought about by the
defendant’s filing of a notice of appeal is virtually complete, leaving the district court with
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jurisdiction only over peripheral matters unrelated to the disputed right not to have [sic]
defend the prosecution or action at trial.” Id.
Mr. Detreville’s motion to reconsider asks the Court to reconsider its holding that
Mr. Detreville is not entitled to summary judgment on his First Amendment retaliation
and malicious prosecution claims against Officer Gurevich and that he is not entitled to
a finding on the discrete elements of such claims. Docket No. 90 at 5–8. Among other
issues, Officer Gurevich argues on appeal that he is entitled to qualified immunity on Mr.
Detreville’s First Amendment retaliation and malicious prosecution. Detreveille v.
Gurevich, Case No. 24-1427 (10th Cir. Nov. 12, 2024), Docket No. 5 at 4–5. These are
the same claims that Mr. Detreville asks the Court to reconsider. The Tenth Circuit’s
ruling on defendants’ appeal will thus directly impact the Court’s findings on Mr.
Detreville’s motion to reconsider and, specifically, whether Mr. Detreville is entitled to
summary judgment on his claim or any discrete element. 1 Therefore, the motion for
reconsideration is not a “peripheral matter,” but rather implicates defendants’ “disputed
right” to not have to “defend the prosecution or action at trial.” Stewart, 915 F.2d at 576.
1 In his motion, Mr. Detreville also asks the Court to clarify whether a jury would
be instructed that defendants lacked probable cause to arrest Mr. Detreville. Docket
No. 90 at 4–5. The Court found that defendants were entitled to qualified immunity on
Mr. Detreville’s unlawful arrest claim because – while they lacked probable cause– they
had arguable cause to arrest Mr. Detreville, and that claim was dismissed with
prejudice. Docket No. 89 at 23–24, 47. Because Mr. Detreville’s unlawful arrest claim
was dismissed with prejudice, a potential jury would not receive any instructions as to
that claim, including an instruction to find that defendants lacked probable cause to
arrest Mr. Detreville. To the extent that Mr. Detreville is asking to the Court to clarify
whether it will find as a matter of law that Mr. Detreville was arrested without probable
cause – which is a discrete element of Mr. Detreville’s First Amendment retaliation claim
– and instruct the jury of the same, the Court will not address this matter until the Tenth
Circuit issues its ruling, for the reasons discussed above.
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Furthermore, the Court finds that defendants’ appeal is not frivolous. A district
court’s finding that an appeal is frivolous would permit the Court to “retain jurisdiction
and to proceed to trial absent intervention by the court of appeals.” Id. However, there
is a “high standard for demonstrating frivolousness.” Jackson v. Besecker, No. 15-cv-
1182-JLK, 2016 WL 9632935, at *1 (D. Colo. Oct. 26, 2016). Moreover, “[q]ualified
immunity is a difficult issue, and one on which lower courts are routinely reversed.”
Sanchez v. Hartley, No. 13-cv-1945-WJM-CBS, 2014 WL 5904755, at *1 (D. Colo. Nov.
13, 2014). Mr. Detreville’s contention that defendants’ “waived arguments are not
appealable,” Docket No. 98 at 2, does not show that defendants’ appeal “utterly lack[s]
legal support.” Howards v. Reichle, No. 06-cv-01964-CMA-CBS, 2009 WL 2338086, at
*4 (D. Colo. July 28, 2009).
Accordingly, the Court finds that it was divested of jurisdiction when defendants
filed their notice of appeal. As a result, the Court will grant defendants’ motion to stay.
Administrative closure pursuant to D.C.COLO.LCivR 41.2 may be appropriate when a
case would otherwise be stayed for an indefinite amount of time. See Garcia v. State
Farm Mut. Fire & Cas. Co., No. 20-cv-02480-PAB-MEH, 2021 WL 4439792, at *6 (D.
Colo. Sept. 27, 2021) (ruling that case should be administratively closed pursuant to
D.C.COLO.LCivR 41.2 because the arbitration proceedings would last for an indefinite
period of time). Administrative closure is “the practical equivalent of a stay.” sPower
Dev. Co., LLC v. Colo. Pub. Utilities Comm’n, No. 17-cv-00683-CMA-NYW, 2018 WL
5996962, at *4 (D. Colo. Nov. 15, 2018) (quoting Quinn v. CGR, 828 F.2d 1463, 1465
n.2 (10th Cir. 1987)). Because this case will be stayed for an unknown period of time
pending the Tenth Circuit’s decision on the interlocutory appeal, the Court finds good
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cause to administratively close this case pursuant to D.C.COLO.LCivR 41.2, subject to
being reopened for good cause shown. The Tenth Circuit’s ruling on the interlocutory
appeal will constitute “good cause.”
Accordingly, the Court will deny Plaintiff’s Motion for Clarification and/or
Reconsideration of Order Denying Plaintiff’s Motion for Partial Summary Judgment.
Docket No. 90; see D.C.COLO.LCivR 41.2 (“Administrative closure of a civil action
terminates any pending motion.”). Mr. Detreville may move to re-file the motion after
the Tenth Circuit decides the interlocutory appeal.
III. 	CONCLUSION
Therefore, it is
ORDERED that the Defendants’ Motion to Stay Proceedings [Docket No. 96] is
GRANTED. It is further
ORDERED that, pursuant to D.C.COLO.LCivR 41.2, this case is administratively
closed. Either party may move to reopen the case for good cause. It is further
ORDERED that the parties shall file a status report with the Court within 21
days of the Tenth Circuit’s ruling in Case No. 24-1427. It is further
ORDERED that Plaintiff’s Motion for Clarification and/or Reconsideration of
Order Denying Plaintiff’s Motion for Partial Summary Judgment [Docket No. 90] is
DENIED without prejudice. It is further
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ORDERED that the trial preparation conference set for January 10, 2025 and the
jury trial set for January 27, 2025 are VACATED.
DATED December 24, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
__________________________
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