Heller v. Woodward

• Decision Date: 10 April 1990
• Docket Number: No. 88-1527-M Civ.,88-1527-M Civ.
• Citation: 735 F. Supp. 996
• Parties: Michael HELLER, Plaintiff, v. William WOODWARD, Defendant.
• Court: U.S. District Court — District of New Mexico

735 F. Supp. 996

Michael HELLER, Plaintiff, v. William WOODWARD, Defendant.

No. 88-1527-M Civ.

United States District Court, D. New Mexico.

April 10, 1990.

Robert D. Jesmer, Caldwell, Levin, Jesmer & Vance, Santa Fe, N.M., and Richard H. Levin, Caldwell, Levin, Jesmer & Vance, Albuquerque, N.M., and Stephen E. Tinkler, Denver, Colo., for plaintiff.

David P. Barton and C. Emery Cuddy, Jr., Simons, Cuddy & Friedman, Santa Fe, N.M., for Santa Fe Public Schools and William Woodward.

MEMORANDUM OPINION AND ORDER

MECHEM, District Judge.

This matter came on for consideration on defendant's motion to stay the trial of April 16, 1990 pending the appeal of my order of April 2, 1990 denying defendant's motion for summary judgment on the issue of qualified immunity. Having considered the motion the response, the reply, and being otherwise fully advised in the premises, I find that the motion for the stay is hereby denied and a certification of frivolousness is hereby entered to the Tenth Circuit Court of Appeals.

BACKGROUND

Plaintiff brought this action claiming that defendant, Director of the Naval Junior Reserve Officer Training Corps (JROTC) at Santa Fe High School, violated his first amendment rights when defendant physically removed him from the JROTC's reception following an inspection to which plaintiff, as a photographer for the Santa Fe Daily Newspaper, had been invited. Plaintiff alleges that defendant prohibited him from taking a photograph of a cadet who had fainted and forcibly removed him from the room. Plaintiff further claims that the defendant removed him from the room in a negligent manner which resulted in injuries to the plaintiff and his equipment.

Defendant brought a motion for summary judgment based on qualified immunity for the alleged First Amendment violation. I denied defendant's motion by order dated April 2, 1990. Defendant filed a notice of appeal on April 6, 1990 and filed the present motion to stay on April 6 and the memorandum in support on April 9. Plaintiff responded and defendant replied on April 9.

DISCUSSION

Interlocutory appeals under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) concerning the denial of qualified immunity claims are, like interlocutory appeals concerning the denial of double jeopardy claims, based upon the collateral order doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir.1989). An interlocutory appeal taken under the collateral order doctrine which has been determined to be frivolous does not divest the district court of jurisdiction to act. United States v. Hines, 689 F.2d 934, 936-37 (10th Cir.1982); Apostol, supra, at 1338. The reason is to prevent a defendant from injuring the legitimate interest of other litigants and the judicial system by unwarranted delay brought about by the mere filing of a notice of appeal. United States v. Hines, supra, at 936-37; Apostol, supra, at 1338-39. The district court additionally retains jurisdiction to determine whether the defendant's right not to be tried has been waived or forfeited. Apostol, supra, at 1339.

A pretrial appeal of a denial of qualified immunity may be appropriate in situations where the district court finds disputed issues of material fact concerning the qualified immunity claim. DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714, 719 (10th Cir.1988). The court of appeal's task in such a case is not to determine liability but rather "to determine whether, on the basis of the pretrial record, there exists a conflict sufficiently material to defendants' claim of immunity to require them to stand trial." Id. (citations omitted).

In this case, the pretrial record is so replete with evidence that creates disputed issues of material fact concerning defendant's claim of immunity that an opinion setting forth the reasoning for my denial of defendant's motion was not warranted. It is undisputed that at the time the plaintiff was on the public school property, he had been invited to be there to report on the inspection. The general public was invited as well, and the general public was on the property and had not been asked to leave. The room in which the alleged violation occurred was the site of a reception to which the public had been invited following the inspection. Plaintiff's right to be in the room and to perform the duties of a reporter is clearly established under Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), Houchins v. KQED, 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), and Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Plaintiff provided evidence and argument which raised genuine issues of material fact which go to whether or not the State Board of Education Regulation No. 81-3 on which defendant depends would be applicable to the plaintiff and whether, even if applicable, defendant unreasonably misapplied the regulation. Through deposition testimony, plaintiff raised factual disputes as to whether or not plaintiff was being disruptive as well as to the manner in which plaintiff was ejected from the area.

Plaintiff's deposition provides that when he approached the reception room, the defendant jumped up and grabbed him...