                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        October 17, 2012
                                         PUBLISH                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                       UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT


 PHILLIP MARTINEZ; RICARDO
 SARMIENTO,
               Plaintiffs–Appellants/
               Cross-Appellees,
        v.                                                    Nos. 11-2095 & 11-2200
 GARY CARSON; DON MANGIN, in
 their individual capacities,
               Defendants–Appellees/
               Cross-Appellants.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. 1:08-CV-01046-WJ-LFG)



Paul J. Kennedy (Arne R. Leonard with him on the briefs) of Kennedy & Han, P.C.,
Albuquerque, New Mexico, for Plaintiffs–Appellants/Cross-Appellees.

Lisa Entress Pullen (Anita M. Kelley with her on the briefs) of Civerolo, Gralow, Hill &
Curtis, P.A., Albuquerque, New Mexico, for Defendants–Appellees/Cross-Appellants.


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.


McKAY, Circuit Judge.


       In these cross-appeals, the parties raise challenges to various rulings made by the

district court in a § 1983 action arising out of an allegedly unlawful seizure.
       The incident underlying this action began when Defendants Gary Carson and Don

Mangin, employees of the New Mexico Department of Corrections, observed Plaintiffs

Phillip Martinez and Ricardo Sarmiento sitting or standing with a third man in a low-lit

area outside an apartment building in a high-crime neighborhood at night. Defendants,

who had been patrolling the area as task force members with police officers from the Rio

Rancho Department of Public Safety, pulled up to the apartment building in an unmarked

police car and turned on the emergency lights. The third man fled into the apartment

building when Defendants approached, and Rio Rancho police officer Lieutenant

Camacho pursued him. Meanwhile, Defendants forced Plaintiffs to the ground,

handcuffed them, drew weapons, and conducted a pat-down search. When additional Rio

Rancho officers arrived on the scene a few minutes later, Defendants transferred

Plaintiffs, still in handcuffs, into the custody of these officers. The Rio Rancho police

officers eventually arrested and booked Plaintiffs, holding Mr. Martinez for twelve hours

and Mr. Sarmiento for five hours before their release.

       In their § 1983 action, Plaintiffs raised claims of unlawful seizure against several

Rio Rancho police officers as well as the named Defendants in this appeal. Defendants

moved for summary judgment based on qualified immunity, with a corresponding stay of

discovery until the district court resolved the qualified immunity issue. The magistrate

judge granted the discovery stay. During the discovery stay, though, Plaintiffs conducted

consensual interviews of the Rio Rancho defendants. Defendants argued these interviews

were actually depositions held in violation of the stay order, and they therefore submitted

                                             -2-
a motion to strike and requested sanctions. The district court agreed Plaintiffs had

violated the stay order and thus ordered the interview of Lt. Camacho to be stricken,

ordered all motions citing the interview to be denied without prejudice, and ordered

Plaintiffs to pay the cost of taking Lt. Camacho’s deposition. The Rio Rancho defendants

subsequently settled the claims against them and were dismissed from the action.

       Defendants filed a third motion for summary judgment and Plaintiffs filed a cross-

motion for partial summary judgment. The district court denied both motions, citing

multiple factual disputes. The court held that the pertinent question for the jury to decide

was whether Defendants had reasonable suspicion of criminal activity when they detained

Plaintiffs—if so, the brief seizure was warranted as an investigative detention responsive

to officer safety concerns; if not, it was an illegal seizure. The court further held that

Defendants could only be held liable for their own allegedly unlawful conduct, not for the

actions of the Rio Rancho officers. The district court thereby limited Defendants’

liability on Plaintiffs’ Fourth Amendment claims to the first few minutes of the seizure.

       In pre-trial motions in limine, based on its earlier summary judgment ruling, the

district court granted Defendants’ motion to exclude (1) evidence of Plaintiffs’ arrests, (2)

evidence concerning the existence of probable cause for those arrests, and (3) evidence of

any events that occurred after Defendants transferred custody of Plaintiffs to the Rio

Rancho defendants.

       The case then proceeded to trial, where the jury found for Plaintiffs on their

unlawful seizure claim, finding Defendants lacked reasonable suspicion to justify the

                                              -3-
initial seizure, and awarded Plaintiffs compensatory and punitive damages totaling $5,000

each—$2,500 compensatory and $2,500 punitive. Plaintiffs now appeal the district

court’s orders limiting Defendants’ liability to the first few minutes of the seizure, as well

as its earlier discovery sanction. On cross-appeal, Defendants raise issues regarding (1)

the district court’s denial of summary judgment based on qualified immunity, (2) the

district court’s denial of their Rule 50(b) motion for judgment as a matter of law, (3)

various evidentiary rulings the district court made at trial, and (4) the inclusion of a

punitive damages jury instruction.

                                       DISCUSSION

        We begin with Plaintiffs’ appellate claims. We first review the district court’s

holding that Defendants’ liability for unlawful seizure under the Fourth Amendment was

limited to the first few minutes of the seizure as a matter of law. We review this legal

determination de novo. Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987).

        The question before us is whether Defendants are liable only for the two-to-three-

minute period Plaintiffs were in Defendants’ custody, or whether Defendants share in

responsibility for the entire custodial arrests. Defendants contend they should not be held

liable because they did not personally participate in Plaintiffs’ arrests. The district court

held:

        There is no evidence indicating that Defendants promoted, suggested, or
        indirectly caused or conspired with any Rio Rancho DPS personnel to
        violate Plaintiffs’ rights. Neither is there any evidence to infer in the
        slightest that Defendants knew, or should have known, that Plaintiffs would
        be deprived of their rights by the Rio Rancho DPS officers or Lt. Camacho.

                                              -4-
       Defendants took no part in the decision to further detain or charge Plaintiffs
       once they transferred them to the custody of the Rio Rancho police officers.
       . . . Defendants may only be held liable for their own unlawful conduct in
       this case.

(Appellants’ App. at 837.) We disagree with this conclusion.

       Section 1983 imposes liability on a government official who “subjects, or causes

to be subjected, any citizen . . . . to the deprivation of any rights.” 42 U.S.C. § 1983.

Thus, “[a]nyone who ‘causes’ any citizen to be subjected to a constitutional deprivation is

also liable.” Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006) (internal quotation

marks omitted). “The requisite causal connection is satisfied if [Defendants] set in

motion a series of events that [Defendants] knew or reasonably should have known would

cause others to deprive [Plaintiffs] of [their] constitutional rights.” Id. (internal quotation

marks omitted). Indeed, “[s]ection [1983] should be read against the background of tort

liability that makes a man responsible for the natural consequences of his actions.”

Monroe v. Pape, 365 U.S. 167, 187 (1961); see also McKinley v. City of Mansfield, 404

F.3d 418, 438-39 (6th Cir. 2005). Thus, Defendants are liable for the harm proximately

caused by their conduct. Trask, 446 F.3d at 1046. In other words, they may be held

liable if the further unlawful detention and arrest would not have occurred but for their

conduct and if there were no unforeseeable intervening acts superseding their liability.

Id. at 1046-47. “That conduct of other people may have concurrently caused the harm

does not change the outcome as to [Defendants].” Lippoldt v. Cole, 468 F.3d 1204, 1220

(10th Cir. 2006).


                                              -5-
       We conclude that a reasonable jury could find Defendants’ conduct to be the

proximate cause of at least some portion of Plaintiffs’ prolonged detention following

Defendants’ transfer of custody to the Rio Rancho officers. The jury found that

Defendants had no reasonable suspicion of criminal activity when they forced Plaintiffs to

lie on the ground, handcuffed them, and transferred them, still in handcuffs, to the

custody of Rio Rancho police officers. We conclude that a reasonable jury could further

find this initial illegal detention and transfer of custody was the but-for cause of

Plaintiffs’ further detention in Rio Rancho custody—a jury could reasonably find that

Plaintiffs’ arrests and prolonged detentions would not have occurred had Defendants not

seized them and transferred them to the custody of Rio Rancho officers. Finally, we

conclude that the facts and reasonable inferences to be drawn therefrom could support a

jury finding that Defendants knew or should have known their illegal seizure and transfer

of custody would result in Plaintiffs’ prolonged detention after the transfer of custody.

Although Defendants may not have foreseen the full extent of the detention, a jury could

certainly find that they foresaw at least some additional period of detention while, for

instance, the Rio Rancho officers conducted an investigation into probable cause. The

extent to which Defendants can be held liable for the further detention depends upon what

they reasonably foresaw when they transferred Plaintiffs to police custody, and we

conclude that this question is sufficiently disputed to require resolution by a jury.

       We thus reverse the district court’s summary judgment conclusion that Defendants

could only be liable for the first few minutes of the seizure. On remand, the district court

                                             -6-
should conduct a second trial on the limited issue of whether (and to what extent)

Defendants should have known their unlawful seizure of Plaintiffs would result in their

prolonged detention in Rio Rancho custody and, if so, whether any additional damages

are appropriate. See Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d

1221, 1255-58 (10th Cir. 1999).

      We next review the discovery sanction against Plaintiffs. We review a district

court’s order of discovery sanctions for abuse of discretion. Kaufman v. Am. Family Mut.

Ins., 601 F.3d 1088, 1092 (10th Cir. 2010). On June 22, 2009, the magistrate judge

issued an order staying all discovery pending a ruling on Defendants’ summary judgment

motion on qualified immunity. At issue in the magistrate judge’s stay order was

Plaintiffs’ contention that discovery should not be stayed for those other defendants who

wanted to continue conducting discovery. Plaintiffs argued that they needed to depose

Lieutenant Camacho and the other Rio Rancho officers in order to respond to Defendants’

motion for summary judgment. However, the magistrate judge held that all discovery

needed to be stayed under the Supreme Court’s reasoning in Ashcroft v. Iqbal, 556 U.S.

662 (2009). As the Court explained:

      It is no answer to these concerns to say that discovery for petitions can be
      deferred while pretrial proceedings continue for other defendants. It is quite
      likely that, when discovery as to the other parties proceeds, it would prove
      necessary for petitions and their counsel to participate in the process to
      ensure the case does not develop in a misleading or slanted way that causes
      prejudice to their position. Even if petitioners are not yet themselves
      subject to discovery orders, then, they would not be free from the burdens
      of discovery.


                                            -7-
Id. at 685-86. The magistrate judge thus granted the discovery stay, requiring “that all

discovery in this case be stayed.” (Appellants’ App. at 93 (emphasis added).) The

magistrate judge then stated: “To the extent Plaintiff believes that some discovery is

necessary to respond to the pending motion for summary judgment, Plaintiff should

proceed in accord with this Court’s earlier instructions on Fed. R. Civ. P. 56(f) and the

requirements in Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980, 987

(10th Cir. [2000]).” (Id.)

       In accordance with this invitation, Plaintiffs filed a motion on June 24 seeking

discovery under Rule 56(f). However, without waiting for a response, Plaintiffs

proceeded the very next day to conduct consensual “interviews” of Lt. Camacho and the

other Rio Rancho defendants. They did not notify Defendants of the interviews, and

Defendants were not present. These interviews proceeded essentially like depositions,

with the Rio Rancho defendants, in the presence of their attorney, being asked extensive

questions under oath by Plaintiffs’ counsel. Three days after the interviews, unaware that

they had occurred, the magistrate judge granted in part Plaintiffs’ June 24 motion for

discovery, permitting Plaintiffs to conducted limited depositions of Defendants and Lt.

Camacho. However, having already obtained deposition-like evidence from Lt.

Camacho, Plaintiffs did not conduct his deposition. Instead, Plaintiffs had the recording

of the interviews transcribed by the court reporter, and they relied on this transcript in

their response to Defendants’ summary judgment motion.

       After extensive briefing on the question, the district court concluded that the

                                             -8-
interviews violated the discovery stay. The court noted that the “legal ruckus” caused by

these interviews “could have been easily avoided by Plaintiffs’ counsel waiting all of four

days for Judge Garcia’s Order allowing limited discovery pursuant to Rule 56(f), and then

just deposing Defendant Camacho under Rule 32 within the limits set forth by the Court.

Alternatively, Plaintiff’s counsel could have prepared a traditional form of an affidavit

from the contents of the taped statement.” (Appellants’ App. at 578.) The district court

stressed the fact that the format of the recorded interview “possesses characteristics of a

discovery proceeding.” (Id. at 579.) Counsel did not simply conduct voluntary

interviews of the Rio Rancho defendants for investigatory or settlement purposes; rather,

counsel conducted a deposition-like proceeding with these defendants, using exhibits and

asking extensive questions to obtain evidence against the other defendants whose counsel

was not noticed to be present. In light of the magistrate judge’s order staying “all

discovery” and stating that Plaintiffs would need to proceed under Rule 56(f) to obtain

discovery from the Rio Rancho defendants, the district court concluded that “the Stay

Order was violated, if not technically, then in spirit.” (Id.) However, the district court

rejected the magistrate judge’s recommendation that Defendants be awarded the amount

of their attorney fees incurred as a result of the stay violation. Instead, the district court

simply ordered the parties to proceed with the Rule 56(f) deposition of Lt. Camacho, with

Plaintiffs bearing the costs they would already have expended had they complied with the

magistrate judge’s order in the first place. The district court also required all parties,

including Defendants, to re-file any motions that included citations to the stricken

                                              -9-
interview.

       We see no abuse of discretion in this minimal discovery sanction. The magistrate

judge’s stay order clearly stayed “all discovery.” Further, he even precisely decided the

issue of whether other defendants could continue with discovery in the negative.

Plaintiffs submitted a discovery request one day before their interview of the other

defendants and four days before the magistrate judge allowed a deposition of Lt.

Camacho. With the pending stay on “all discovery,” it was not overly burdensome to

expect Plaintiffs to wait less than a week to take their requested deposition. Contrary to

Plaintiffs’ contentions, they did not simply exercise their First Amendment right to

participate in settlement discussions. Rather, they obtained deposition-like evidence they

then attempted to use precisely like a deposition in their summary judgment pleadings.

Under all of the circumstances of this case, we conclude that the district court did not

abuse its discretion in holding that Plaintiffs violated the magistrate judge’s stay order.

We also reject Plaintiffs’ due process claim that they did not have notice these interviews

were sanctionable. Under all of the circumstances of this case, Plaintiffs were sufficiently

put on notice that their actions were impermissible. See Kaufman, 601 F.3d at 1094-95.

       Turning now to Defendants’ cross-appeal, we must first determine the question of

our appellate jurisdiction over the cross-appeal. Specifically, we consider Plaintiffs’

contention that Defendants’ appeal is untimely because it was filed more than thirty days

after the district court entered its final judgment.

       The district court entered its final amended judgment on May 5, 2011, and

                                              -10-
Defendants filed their first post-judgment motion seeking judgment as a matter of law or

a new trial under Fed. R. Civ. P. 50 and 59 on May 6, 2011. On July 6, 2011, the district

court denied Defendants’ post-judgment motion “without prejudice to re-filing with

appropriate citations to the trial transcript.” (Appellants’ App. at 1085.) Defendants filed

an amended post-judgment motion, with citations to the trial transcript, on August 5,

2011. The district court entered an order on September 8, 2011, denying Defendants’

post-judgment motion. Defendants filed their notice of appeal on October 6, 2011.

       Federal Rule of Appellate Procedure 4(a)(1) requires a notice of appeal be filed

within thirty days after entry of judgment in the district court. Filing of a timely motion

for judgment as a matter of law under Fed. R. Civ. P. 50(b) or for a new trial under Fed.

R. Civ. P. 59 starts the thirty-day time limit after entry of the order disposing of the last

post-judgment motion. Fed. R. App. P. 4(a)(4)(A). To be timely under this rule, a

motion under Rule 50 or 59 must be filed within twenty-eight days after the entry of

judgment. See Fed. R. Civ. P. 50(b); Fed. R. Civ. P. 59(b). And, the district court “must

not extend the time to act” under these rules. Fed. R. Civ. P. 6(b)(2).

       Defendants argue their second post-judgment motion was within the limitations

period because the district court dismissed their first motion without prejudice and invited

them to re-file their motion. Based on this invitation, Defendants argue, there was no

final decision resolving the litigation at the district court level until after they had filed,

and the district court had ruled on, their second post-judgment motion. However, we note

the district court’s order did not set a time frame for Defendants to re-file. Moreover,

                                              -11-
there was no indication that Defendants were in fact going to file a second motion, since

they argued in their first motion that citations to the transcript were not in fact necessary.

In essence, Defendants argue that the dismissal of a party’s post-judgment motion without

prejudice, combined with an invitation to file an amended motion, renders the judgment

non-final until some nebulous time in the future when the party may choose to file such

an amended motion. In light of the strict timeline set forth in the rules of civil procedure,

we cannot accept this proposition.1

       “A court must not extend the time to act under Rules 50(b) . . . [and] 59(b),” Fed.

R. Civ. P. 6(b)(2), and it may not avoid this rule by dismissing a first post-judgment

motion without prejudice and extending an open-ended invitation for the moving party to

file an amended motion at some unknown point in the future. Cf. Watson v. Ward, 404

F.3d 1230, 1232 (10th Cir. 2005) (“[T]o construe the untimely Rule 59(e) motion as one

made pursuant to Rule 60(b) would be an end-run around Fed. R. App. P. 4(a)(6).”). If

the district court had clearly reserved decision on the merits of the first post-judgment

motion or set a timeline for supplementation, this might be a different case, but under the



       1
         We have not yet decided whether Rule 59 is a “jurisdictional” or a “claims
processing” rule. Compare Watson v. Ward, 404 F.3d 1230 (10th Cir. 2005) with
Gonzalez v. Thaler, 132 S. Ct. 641 (2012), and Bowles v. Russell, 551 U.S. 205, 212
(2007). Even if these timeliness rules are not jurisdictional, Plaintiffs clearly objected to
the timeliness of Defendants’ motions early and repeatedly and therefore did not waive
their objection. See Wilbur v. Robinson, 480 F.3d 1140, 1147 (“[A] claim-processing rule
is nonetheless mandatory and district courts must observe the clear limits of time
prescription when they are properly invoked.” (internal quotation marks and brackets
omitted)).

                                             -12-
circumstances of this case we conclude that Defendants’ time to file a notice of appeal

began to run with the district court’s dismissal of their first post-judgment motion.

Compare Fisher v. Kadant, Inc., 589 F.3d 505, 511 n.2 (“The district court had the

authority to reserve decision on the first motion to reconsider and allow the plaintiffs to

supplement it with a proposed amended complaint. . . . Here, however, that is not what

the district court did; rather, it denied the motion. . . . The fact that the order specified that

the denial of the first motion was ‘without prejudice’ did not render the second motion

timely.”), with Dresdner Bank AG v. M/V Olympia Voyager, 465 F.3d 1267, 1271 (11th

Cir. 2006) (holding an amended post-judgment motion did not affect the timeliness of the

original filing where the court had not yet decided the motion). Defendants had thirty

days to appeal following the dismissal of their timely post-judgment motion, and their

later filing of a second, untimely post-judgment motion does not change the deadline.

Because Defendants failed to file a notice of appeal within thirty days following the

dismissal of their first post-judgment motion, we must dismiss the cross-appeal for lack of

jurisdiction. See Coll v. First Am. Title Ins. Co., 642 F.3d 876, 886 (10th Cir. 2011) (“A

timely notice of appeal is both mandatory and jurisdictional.” (internal quotation marks

omitted)).

                                       CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s sanctions order,

REVERSE the district court’s summary judgment order limiting Defendants’ liability,

and REMAND to the district court for a new trial limited to the issue of whether (and to

                                              -13-
what extent) Defendants reasonably should have known their unlawful seizure of

Plaintiffs would result in the prolonged detention and, if so, whether any additional

damages are appropriate. Defendants’ cross-appeal is DISMISSED.




                                           -14-
