Free Response to Motion - 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 Case Number 00-cv-2555-JLK-BNB __________________________________________________________________ PAMELA CLIFTON, Plaintiff, vs. NURSE IONA EUBANK, in her individual capacity; OFFICER ANAYA, in her individual capacity; OFFICER WILKS, in her individual capacity, Defendants. ______ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) OF THIS COURT'S MARCH 8, 2006, ORDER

Plaintiff, Pamela Clifton, by and through counsel, David A. Lane and Mari Newman of KILLMER, LANE & NEWMAN, LLP, files this Response to Defendant's Motion for Certification Pursuant to 28 U.S.C. § 1292(b) of this Court's March 8, 2006, Order as follows: I. FACTS

Ms. Clifton was an inmate housed within the Colorado Department of Corrections at the Women's Correctional Facility in Canon City, Colorado. On Christmas day, 1998, Pam Clifton, went into labor at the women's facility. She told Defendant Anaya, a guard, that she was in labor and needed medical help. Defendant Anaya told her it was count time, and refused to summon medical help. Ms. Clifton then told Defendant Wilks that she was in labor and needed help. Wilks told her to go back to her unit, as there were "plenty of women back there who could birth a baby." Finally, after a full day of agonizing labor with no medical assistance at all, another officer sent Ms. Clifton to medical where Defendant Eubank, a DOC nurse, told her she

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did not know how to use the fetal heart monitor. She noted that Ms. Clifton's water had not broken so she sent her back to her unit rather than to the hospital on a "false alarm." Ms. Clifton implored Defendant Eubank to send her to the hospital as with her two prior deliveries, she needed assistance breaking her water and with the smooth induction of labor. Defendant Eubank ignored the obvious, serious medical needs of Ms. Clifton and sent her back to the unit. The next day, another officer noted Ms. Clifton's distress and immediately sent her to medical. At that point, Ms. Clifton felt no fetal movement. She was immediately sent to the hospital where it was determined that her baby had died. Ms. Clifton was forced to undergo a stillbirth. Had Ms. Clifton been properly treated, it is likely that this tragic and unnecessary loss of life would not have occurred, and her baby would have been born alive and healthy. Even though Ms. Clifton was indigent, the Department of Corrections made her pay for the funeral of her baby. Ms. Clifton filed internal grievances against those responsible for this incident and has exhausted any and all administrative avenues for relief. Defendant Wilks then retaliated against Ms. Clifton by yelling and screaming at Ms. Clifton and taking advantage of her position of power vis a vis Ms. Clifton to deny her permission to do various things without any justification. In this case, Ms. Clifton has brought claims under 42 U.S.C. § 1983 for the Defendants' violation of her rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution, and for Defendant Wilks' retaliation against Ms. Clifton for seeking to exercise those Constitutional rights. Ms. Clifton seeks compensatory and punitive damages, in addition to declaratory and injunctive relief. This Court denied Defendant's motion for summary judgment. The Defendants seek certification from this Court in order to take an interlocutory appeal. Defendants seek certification on the ground that the issue of whether Ms. Clifton suffered an injury is an unsettled

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question of law. Defendants' Motion for Certification Pursuant to 28 U.S.C § 1292(b) Of This Court's March 8, 2006, Order, p. 2. It is Plaintiff's contention that the certification should be denied as the question presented by Defendant is a factual question, not a legal question and only questions of law can be certified. II. LEGAL STANDARD OF REVIEW

Generally, interlocutory orders of district courts are not permitted appellate review prior to the entry of final judgment. Cotner v. Mason, 657 F.2d 1390, 1391 (10th Cir. 1981). Appeals from interlocutory orders may be permitted if the district judge is "of the opinion that such order 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 the litigation." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting 28 U.S.C § 1292(b)). Certification procedure is not mandatory, and permission to appeal is wholly within discretion of courts, even if criteria specified by statute are present. Bachowski v. Usery, 545 F.2d 363, 368 (3rd Cir. 1976). The party seeking certification has the burden of showing that exceptional circumstances justify departure from the basic policy of postponing appellate review until after entry of final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). All three criteria set out in section 28 U.S.C. §1292(b) must be met before it is proper for a district judge to certify an order for review. The order must involve: (1) a controlling question of law; (2) a substantial ground for difference of opinion with respect to that question of law; and (3) an immediate appeal would materially advance the ultimate termination of the litigation. In re Wyoming Tight Sands Antitrust Cases, 715 F. Supp. 307, 308 (D. Kan. 1989). Use of this

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certification procedure should be strictly limited because "only `exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)); see Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992) (district courts must use "great care" in making a § 1292(b) certification). Indeed, there is a distinct federal policy against piecemeal appeals in the interest that the floodgates not be opened bringing into the exception many pretrial orders. Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 385 U.S. 23, 25 (1966). III. ARGUMENT

This Court's Memorandum Opinion and Order of March 8, 2006 should not be certified to the appellate court for interlocutory review. The requirement that there be a controlling question of law has not been met in the first place. Ms. Clifton's prolonged labor that resulted in the death of her child is undoubtedly an injury and to the extent there is a question about that fact, it is rightly left to the jury to decide. Secondly, Defendant has provided no evidence that there are substantial grounds for differing opinions as to this Court's Order. On the contrary, this Court in its Memorandum Opinion and Order clearly showed support of its finding with similar case law and well reasoned legal theory. And finally, Defendants' argument that an immediate determination of the issue at hand will materially advance the ultimate termination of the litigation falls flat. Discovery has been completed and the case is ready to be tried. Allowing the case to finally go to trial better supports the goals of judicial economy and efficiency. This case does not present an exceptional circumstance to justify certification of an interlocutory appeal. The appellant has the burden to prove that exceptional circumstances

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justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. Coopers & Lybrand, 437 U.S. at 475. The Defendants have not carried that burden. Courts have been very clear that this section be applied sparingly and with caution. "Enlargement of the right to appeal should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action." State of Utah v. Dennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994); see Barrett v. Burt, 250 F. Supp. 904, 906 (S.D. Ia. 1966) (section 1292(b) must be sparingly applied and is only to be used in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation). The legislative history indicates that an appeal from an interlocutory order should not be used to decide the mere question of the correctness of a ruling. Haraburda v. United States Steel Corp., 187 F. Supp. 86, 89 (W.D. MI 1960). In this case, Defendants seek to have an order certified to the appellate court with no hope that a decision by the court of appeals will avoid protracted and costly litigation when all discovery has been concluded and the case is ready to proceed to trial. a. Whether Ms. Clifton's prolonged labor resulting in the stillbirth of her child is an injury is a question of fact reserved for the jury. The statute's first requirement is that the question of law presented for appeal be "controlling." An order is not appropriate for certification pursuant to 28 U.S.C. §1292(b) where it is predicated at least in part on specific factual findings and appeal would necessarily present mixed questions of law and fact rather than controlling issue of pure law. Steering Comm. v. United States, 6 F.3d 572, 574 (9th Cir. 1993); SEC v. First Jersey Secur., Inc., 587 F. Supp. 535, 536 (S.D.N.Y. 1984). A question, such as the one presented by Defendants, which may require a factual as well as a legal decision is not suitable for interlocutory review. Johnson v. Alldredge, 488 F.2d 820, 822 (3rd Cir. 1973), cert. denied sub nom. Cronrath v. Johnson, 419

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U.S. 882, 95 S. Ct. 148, 42 L. Ed. 2d 122 (1974). This Court addressed the similarities between Ms. Clifton's case and that of Pool v. Sebastian County, 418 F.3d 934 (8th Cir. 2005) in which the Eighth Circuit determined that "whether a miscarriage constituted physical injury was not an `abstract issue of law,' but was a material question of fact concerning damages or causation reserved for the fact-finder." See Memorandum Opinion and Order p.12 (Docket No. 68). Similarly, Ms. Clifton was forced to endure a full two days of agonizing labor with no medical assistance and the resulting stillbirth of her child. The question as to whether that constitutes an "injury" is one for the fact finder. Defendants argue that the determination in the March 8, 2006 Memorandum Opinion and Order is "controlling" because without the physical injury requirement they are immune from suit in this action. Defendants' Motion for Certification Pursuant to 28 U.S.C § 1292(b) Of This Court's March 8, 2006, Order, p. 5. A question of law is not "controlling" as required for interlocutory appeal merely because it is determinative of the case at hand; rather, "a question is controlling only if it may contribute to the determination, at an early stage, of a wide spectrum of cases." Federal Deposit Ins. Corp. v First Nat'l Bank, 604 F. Supp. 616, 620 (E.D. Wis. 1985). The issue at hand is fact specific and does not lend itself to the determination of a "wide spectrum of cases" involving whether a set of circumstances meets the requirements of a physical injury under the Prisoner Litigation Reform Act ("PLRA"). This case addresses whether Ms. Clifton's constitutional rights were violated when she was forced to undergo two days of agonizing labor and the stillbirth of her child because of the complete disregard by prison officials of her obvious and serious medical needs. Moreover, certification by the District Court of an interlocutory order is "not intended merely to provide review of difficult rulings in hard

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cases." Ex rel. Hollander, 420 F. Supp. 853, 859 (D.C. Dist. Col. 1976) (quoting, United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)). b. There is not a substantial ground for differing opinions as to the question of Ms. Clifton's physical injuries The next statutory requirement is that substantial grounds for difference of opinion exist as to the legal question to be certified. The fact that there are no cases interpreting a particular set of facts involved in a case does not necessarily create substantial grounds for a difference of opinion on what the law requires. Federal Deposit Ins. Corp. v. First Nat'l Bank, 604 F. Supp. 616, 620 (E.D. Wis. 1985); United States ex rel. Hollander v. Clay, 420 F. Supp. 853, 859 (D.C. Dist. Col. 1976). Although there may be no court decisions addressing the exact question of whether the pain of prolonged labor and an attendant stillbirth constitute physical injury, numerous courts have ruled on what is sufficient to meet the prior physical injury requirement of the PLRA, as pointed out by this Court in its Memorandum Opinion and Order p. 6 (Docket No. 68). The test applied in numerous courts of appeal is that physical injury must be more than de minimus but need not be significant to satisfy the statutory requirement. Id. There are no substantial grounds for difference of opinions as to the legal requirement -- the question is whether this specific set of circumstances satisfies the test. This Court ruled, and Plaintiff agrees, that it is best left to the fact finder for a determination. Additionally, Defendants cite no cases to support its position that there is a substantial ground for differing opinions as to this Court's conclusion that prolonged labor followed by the death of the fetus is sufficient to meet the prior physical injury requirement of the PLRA. "The mere fact that a specific issue has not been previously ruled on, or that the question presented is one of first impression, is not in itself sufficient to establish a substantial ground for difference of opinion." Adams v. Burlington N. R.R., 843 F. Supp. 686, 688 (D.Kan. 1994).

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c. Discovery has been substantially complete for close to four years, therefore, appeal would not materially advance the ultimate termination of the litigation The final prerequisite required for the district court to be able to exercise its discretion and certify an order for interlocutory appeal is that an immediate appeal would materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Interlocutory orders should be used only in exceptional cases where a decision of the appeal may avoid protracted and expensive litigation. Kraus v. Bd. Of County Comm'rs, 364 F.2d 919, 921 (6th Cir. 1966). In the case at hand, discovery requests have been propounded and answered, both parties have conducted numerous depositions and Defendants' Motions to Stay were denied. In fact, the discovery process had been substantially completed by May 2002, almost 4 years ago. This is not the situation anticipated for the use of an interlocutory appeal. Lorentz v. Westinghouse Electric Corp. 472 F. Supp. 954, 956 (W.D. Pa. 1979) (interlocutory appeal can hardly advance ultimate termination of case when discovery is complete and a case is ready for trial). It is disingenuous to claim that the certification of this Court's Memorandum Opinion and Order would avoid any substantial expense at this late stage of the case. V. CONCLUSION For the foregoing reasons, this Court should DENY Defendant's Motion for Certification Pursuant to 28 U.S.C. § 1292(b) Of This Court's March 8, 2006, Order. Respectfully submitted this 3rd day of April 2006. KILLMER, LANE & NEWMAN, LLP s/ David A. Lane _______________________________________ David A. Lane Mari Newman The Odd Fellows Hall 1543 Champa Street, Suite 400

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Denver, Colorado 80202 (303) 571-1000 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on April 3, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:
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Thomas J. Lyons [email protected] [email protected];[email protected]

and I hereby certify that I have mailed or served the document or paper to the following participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Vincent M. Garvey U.S. Department of Justice Civil Division, Federal Programs Branch 901 E Street, N.W., #946 Washington, DC 20530 Pamela Clifton 1550 S York St. Denver, CO 80210-2817

s/ David A. Lane ________________________________

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