United States District Court, D. Kansas
P. O'HARA U.S. MAGISTRATE JUDGE
case involves the 2017 shooting death of Steven Myers by
defendant Virgil Brewer, acting in his capacity as Barber
County Undersheriff. Plaintiff Kristina Myers filed this
excessive force civil rights action on November 30, 2017,
against defendants Brewer and Lonnie Small, the acting Barber
County Sheriff. Defendants filed motions to
dismiss. The presiding U.S. District Judge, Carlos
Murguia, dismissed Small from the case. Judge Murguia
granted Brewer’s motion to dismiss in part but denied
the motion with respect to his qualified immunity
argument. Defendant appealed the decision to the
Tenth Circuit and, on August 3, 2018, this court stayed the
case pending the resolution of the appeal. Meanwhile, on
September 5, 2018, the State of Kansas charged defendant with
involuntary manslaughter in Barber County District Court
based on the same shooting.
24, 2019, the Tenth Circuit affirmed Judge Murguia’s
qualified-immunity ruling. Defendant filed a petition for
rehearing on August 7, 2019,  which the Tenth Circuit denied on
August 22, 2019. Defendant has notified the court he
intends to file a petition for a writ of certiorari with the
United States Supreme Court, which is due by November 20,
September 4, 2019, plaintiff filed the instant motion to lift
the stay, arguing this court resumed jurisdiction after the
Tenth Circuit issued its mandate and the court should
allow discovery to begin. Defendant opposes the motion,
arguing the court should keep the stay in place pending
resolution of defendant’s petition for writ of
certiorari and resolution of the Barber County District Court
criminal proceedings. For the reasons discussed below, the
court grants plaintiff’s motion.
not cited by the parties, 28 U.S.C. § 2101(f) controls.
As uniformly interpreted and applied, § 2101(f) provides
that, “only the court of appeals or a justice of the
Supreme Court can stay the execution or enforcement of the
court of appeals’ judgment.” Courts in
this district have interpreted this statute as prohibiting a
district court from issuing a stay during the pendency of a
petition to the Supreme Court for writ of
certiorari. In Vogt v. City of Hays,
Kansas, the district court entered judgment for all
defendants. After the plaintiff appealed, the Tenth
Circuit reversed the dismissal of one defendant and remanded
the case to the district court for further proceedings. The
court set the case for a scheduling conference, but before
the conference, the defendant filed a motion to stay. The
court analyzed § 2101(f) and “its limitations on
the authority of the district court to stay a case following
a mandate.” Applying the statute, the court
concluded that § 2101(f) “[did] not permit it to
exercise jurisdiction to stay the Tenth Circuit’s final
judgment pending the filing of resolution of [the]
defendant’s petition for writ of
certiorari.” The court further instructed the
defendant it could seek a stay from either the Tenth Circuit
or the Supreme Court.
“once the court of appeals has issued its mandate . . .
any subsequent appeal to the Supreme Court is of the judgment
of the court of appeals, not the judgment of the
district court.” Under § 2101(f) and Fed. R. App.
P. 41(d), the power to issue a stay belongs to the appellate
courts and the Supreme Court. Defendant previously filed a
petition for rehearing, which the Tenth Circuit denied. For
this court to grant the stay as requested would permit
defendant to obtain in the district court relief that the
Tenth Circuit specifically denied. This court therefore
lacks jurisdiction to stay the Tenth Circuit’s mandate.
undersigned recognizes there are ongoing criminal proceedings
in Barber County, including a trial that was set to begin on
September 23, 2019. On September 27, 2019, the parties
submitted a joint update indicating, upon defendant’s
motion, the criminal case has been transferred from Barber
County to Wyandotte County. The trial has been continued
to a not-yet-determined date and venue. Defendant may
have sound arguments for seeking a stay until the conclusion
of the criminal trial, but still this court lacks
jurisdiction to stay the Tenth Court’s mandate.
Defendant has the right to seek a stay from the appellate
court, and although defendant’s deadline to file a
petition for writ of certiorari is not until November 20,
2019, it may be prudent for defendant to file a petition
early if he intends to seek a stay.
THEREFORE ORDERED that plaintiff’s motion is granted.
By November 1, 2019, the parties shall confer and submit
their Rule 26(f) planning meeting report, as set forth in the
initial scheduling order filed along with this order.
Although the parties may begin discovery, plaintiff shall not
depose defendant nor serve interrogatories on defendant
before the scheduling conference on November 18, 2019. To the
extent defendant has specific objections to other discovery
served before the resolution of the criminal case, defendant
shall raise those objections with the court on an individual
 ECF Nos. 10, 17.