Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:00-cv-02555-JLK-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-02555-JLK-BNB PAMELA CLIFTON, Plaintiff, v. NURSE ILONA EUBANK, in her individual capacity; OFFICER DAWN ANAYA, in her individual capacity; and OFFICER IRIA WILKS, in her individual capacity. Defendants. ______________________________________________________________________________ DEFENDANTS' RENEWED MOTION FOR CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) OF THIS COURT'S MARCH 8, 2006, ORDER ______________________________________________________________________________ Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya, by and through counsel, Hall & Evans, L.L.C., hereby submit this Renewed Motion for Certification, pursuant to 28 U.S.C. § 1292(b), of this Court's March 8, 2006, Order, as follows: Certificate of Compliance with D.C.Colo.L.R. 7.1(A) Pursuant to D.C.Colo.L.R. 7.1(A), counsel for the Defendants contacted David A. Lane, Esq., counsel for the Plaintiff on January 9, 2007, by electronic mail concerning the intent to file the instant Motion and to request Plaintiff's position on the motion. response from Mr. Lane indicating Plaintiff opposes this motion. INTRODUCTION On December 18, 2006, this Court issued an Order denying the remaining issues contained in Defendants' Motion for Summary Judgment, including Defendants' entitlement to Defendants received a

Case 1:00-cv-02555-JLK-BNB

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qualified immunity.

[See Docket No. 92].

Concurrently with this Motion, Defendants appeal

this Court's denial of Defendants' entitlement to qualified immunity to the Tenth Circuit. Based on the pending appeal, Defendants renew their previous Motion for Certification, pursuant to 28 U.S.C. § 1292(b), based on this Court's denial of that portion of Defendants' Motion for Summary Judgment that contended the physical injury requirement of the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. §1997e(e), barred Plaintiff's claims. [ See Docket No. 68]. As Defendants have requested certification from this Court previously, following this Court's March 8, 2006, Order, a reiteration of the basis for certification will not be fully discussed herein, rather, Defendants direct the Court to the previously briefed arguments. [See Docket Nos. 72, 76, and 79]. However, the interlocutory appeal of the issue of qualified immunity provides an

appropriate occasion for the Tenth Circuit to also review this Court's decision pertaining to the Prisoner Litigation Reform Act (PLRA)'s physical injury requirement and, therefore, Defendants renew their motion seeking certification. A review of both threshold questions of law, pertaining to qualified immunity and the PLRA, simultaneously now would be appropriate. STANDARD OF REVIEW A district court may certify an interlocutory order for immediate appeal if it concludes that it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of litigation." See 28 U.S.C. § 1292(b); see also Trout v. Garrett, 891 F.2d 332, 335, n.5 (D.C. Cir. 1989). Through § 1292(b), "Congress . . . chose to confer on District Courts first line discretion" and "circumscribed authority to certify for immediate appeal

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interlocutory orders deemed pivotal and debatable." Swint v. Chambers County Comm'n, 514 U.S. 35, 47-7 (1995). A "controlling" question of law is one which: will determine the outcome or even the future course of the litigation . . . a question is controlling, even though its decision might not lead to reversal on appeal, if interlocutory reversal might save time for the district court, and time and expense for the litigants. Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991). Additionally, "[u]nder section 1292(b), a controlling question of law is one that would require reversal if decided incorrectly or that could materially affect the course of litigation with resulting savings of the court's or the parties' resources." In re Vitamins Antitrust Litigation, 2000 WL 673936 at *2 (D.D.C. Jan. 27, 2000) (Civ. No. 99-197). A party seeking certification pursuant to § 1292(b) must meet a high standard to overcome the "strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals." United States v. Nixon, 418 U.S. 683, 690 (1974). "Although courts have discretion to certify an issue for interlocutory

appeal, interlocutory appeals are rarely allowed . . . the movant `bears the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judgment.'" Virtual Def. And Dev. Int'l, Inc. v. Republic of Moldova, 133 F. Supp.2d 9, 22 (D.D.C. 2001) (quoting First Am. Corp. v. Al-Nahyan, 948 F. Supp. 1107 (D.D.C. 1996). However, certification pursuant to § 1292 is particularly appropriate "when claims of immunity" are at issue. McSurely v. McClellan, 697 F.2d 309, 316, n.12 (D.C. Cir. 1982).

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ARGUMENT Here, Defendants have initiated an appeal based on this Court's denial of Defendants' entitlement to qualified immunity. The issue before the Tenth Circuit, Defendants' entitlement Under such

of qualified immunity, will be reviewed by the appellate court prior to any trial.

circumstances, it makes eminent sense to have the Tenth Circuit review the PLRA's physical injury issue along with the issue of qualified immunity. Specifically, an overlap exists between

the two issues because the Tenth Circuit must address whether Plaintiff suffered any violation of her own constitutional rights based on the applicable law, including the law pertaining to the PLRA's physical injury requirements, as part of its qualified immunity analysis. Accordingly,

any review by the Tenth Circuit would also implicate an analysis of the PLRA. No benefit exists from delaying the Tenth Circuit's review of this Court's analysis of the PLRA since appellate review of qualified immunity would implicate the PLRA issues. Lastly, as discussed above, based on Defendants seeking an interlocutory appeal on the issue of qualified immunity, certification pursuant to 28 U.S.C. § 1292(b) to determine the Tenth Circuit position concerning the physical injury requirement of the PLRA will have no additional effect on the process of these proceedings because the mandatory appellate review allowed for qualified immunity will preclude any further proceedings in this action until resolved, a resolution that clearly implicates the PLRA determination by this Court. WHEREFORE, for all of the foregoing reasons, as well as those articulated in the previous Motion for Certification, Defendants respectfully request this Court to certify, pursuant to 28 U.S.C. § 1292(b), its determination that the PLRA's physical injury requirement is met

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when a prisoner experiences prolonged labor resulting in a stillbirth, and for all other and further relief as this Court deems just and appropriate. Dated this 15th day of January, 2007. Respectfully submitted,

s/ Edmund M. Kennedy____ Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202-5817 [email protected] [email protected] Phone: (303) 628-3300 Fax: (303) 628-3368 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on this 15th day of January, 2006, I electronically filed the foregoing DEFENDANTS' RENEWED MOTION FOR CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) OF THIS COURT'S MARCH 8, 2006, ORDER with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Marcel Krzystek [email protected] David Arthur Lane [email protected] Mari Anne Newman [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner indicated by the non-participant's name: None.

s/Marlene Wilson, Secretary to Thomas J. Lyons, Esq. Edmund M. Kennedy Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 303-628-3368 (fax) [email protected] [email protected] ATTORNEYS FOR DEFENDANTS

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