Free Motion to Stay - District Court of Colorado - Colorado

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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. ______________________________________________________________________________ MOTION TO STAY PENDING APPEAL ON QUALIFIED IMMUNITY ______________________________________________________________________________ Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya, by and through counsel, Hall & Evans, L.L.C., hereby submit this Motion to Stay Pending Appeal of this Court's Determination of Entitlement to Qualified Immunity, and as grounds therefore state as follows: 1. Plaintiff Pamela Clifton brought this action against several employees or former

employees of the Colorado Department of Corrections in both their individual and official capacities pursuant to 42 U.S.C. § 1983 and state law. Contemporaneously with the filing of the instant Motion, Defendants Eubank, Wilks, and Anaya have filed a Notice of Appeal raising the issue of whether this Court properly denied their entitlement to the affirmative defense of qualified immunity from all the Plaintiff's § 1983 claims. These Defendants request this Court

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to stay all further proceedings in this action pending appeal of the denial of Defendants' entitlement to qualified immunity. 2. The doctrine of qualified immunity was created to permit the resolution of many

claims against government officials before "'subject[ing] government officials to either the costs of trial or to the burdens of broad-reaching discovery' in cases where the legal norms the officials are alleged to have violated were not clearly established at the time." Mitchell v. Forsyth, 473 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982) (alteration in original)). "The central purpose of affording public officials qualified immunity

from suit is to protect them `from undue interference with their duties, and from potentially disabling threats of liability." Elder v. Holloway, 510 U.S. 510, 513 (1994) (quoting Harlow,

457 U.S. at 806). Qualified immunity is not only a mere defense to liability; it is an immunity to suit. Mitchell, 473 U.S. at 526-27. Qualified immunity is both an entitlement not to stand trial, Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992), and from the burdens of pre-trial discovery. Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). "[W]hen a case can be dismissed on the pleadings or in an early pre-trial stage, qualified immunity also provides officials with the valuable protection from 'the burdens of broad-ranging discovery.'" Johnson v. Fankell, 117 S.Ct. 1800, 1803 n. 2 (1997) (quoting Harlow, 457 U.S. at 818)). As the United States Supreme Court noted in Harlow, "until this threshold immunity Harlow, 457 U.S. at 818; see also

question is resolved, discovery should not be allowed." Siegert v. Gilley, 500 U.S. 226, 232 (1991).

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3.

The underlying purposes of the qualified immunity doctrine has caused the

Supreme Court to stress the "importance of resolving immunity questions at the earliest possible stage in the litigation." cases). Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (collecting

"Where the defendant seeks qualified immunity, a ruling on that issue should be made

early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 121 S.Ct. 2151, 2155-56 (2001). The affirmative defense of

qualified immunity may be raised either with a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), or a motion for summary judgment pursuant to Fed. R. Civ. P. 56. Behrens v. Pellitier, 516 U.S. 299, 300-5 (1996). 4. Most important to this Motion, any adverse District Court qualified immunity

decision raising a legal question may be appealed on an interlocutory basis pursuant to the collateral order doctrine. See Johnson, 117 S.Ct. at 1803 ("a Federal District Court order

rejecting a qualified immunity defense on the ground that the defendant's actions--if proven-- would have violated clearly established law may be appealed immediately as a `final decision' within the meaning of the general federal appellate jurisdiction statute, 28 U.S.C. §1291."); Johnson v. Jones, 515 U.S. 304, 309-11 (1995). Further, in Behrens, the Supreme Court

specifically held that an individual defendant could raise the affirmative defense of qualified immunity at both the motion to dismiss and summary judgment stages and initiate an interlocutory appeal from the denial of the defendant's entitlement to qualified immunity by a district court on multiple occasions both before and after discovery has occurred. Id. at 306-7.

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5.

This Court's Order denying Defendants' entitlement to qualified immunity relies

on questions of law pertaining to, among other things, what constitutes a serious medical need, whether failure to follow Department of Corrections' procedures constitutes deliberate indifference, which under the facts taken in the light most favorable to Plaintiff establishes any violation of Plaintiff's constitutional rights by any Defendant, and whether the law was clearly established for qualified immunity purposes. Defendants are entitled to appellate review of all

such legal questions and a stay of all proceedings pending such appeal is appropriate. 6. The important policies behind qualified immunity will be subverted in the instant

case if any additional proceedings are held before Defendants Eubank, Wilks, and Anaya have their entitlement to qualified immunity determined by the Tenth Circuit. Accordingly, in the

interest of judicial economy and the avoidance of waste for all parties concerned, and to comply with the important policies underlying qualified immunity, this Court must stay all further proceedings herein pending appeal. 7. 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 to inform them of counsel's intent to file the instant Motion and to request their position on the motion. Defendants received a response from Plaintiff's counsel indicating opposition to this motion. WHEREFORE, for all of the foregoing reasons, Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya respectfully request entry of an order staying all further proceedings in this Court, pending appeal of Defendants' entitlement of qualified immunity, and all related

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proceedings, 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 MOTION TO STAY PENDING APPEAL ON QUALIFIED IMMUNITY with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail 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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