Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 04/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-2555-JLK-BNB PAMELA CLIFTON Plaintiff, v. ILONA EUBANK, in her individual capacity; OFFICER ANAYA, in her individual capacity; OFFICER WILKS, in her individual capacity, Defendants. ______________________________________________________________________________ RESPONSE TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTION FOR RECONSIDERATION 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 Response to Plaintiff's Motion for Extension of Time to Respond to Defendants' Motion for Reconsideration of this Court's March 8, 2006, as follows: 1. On March 8, 2006, this Court issued an Order denying Defendants' Motion for

Summary Judgment, determining the PLRA's physical injury requirement did not bar Plaintiff's claims. [See Docket No. 68]. That ruling contains no mention of any other argument raised in Defendants' Motion for Summary Judgment. immunity argument raised by Defendants. In particular, no ruling is stated in regard to any [Id.]. Plaintiff's Motion to Recognize the

Constitutional and Human Rights of Prison Inmates in relation to Defendants argument concerning the PLRA was denied as moot. [Id.].

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2.

On March 15, 2006, Defendants filed a Motion for Reconsideration of this

Court's March 8, 2006, based on Defendants' Motion for Summary Judgment raising multiple issues, including an entitlement to qualified immunity, not addressed in this Court's March 8, 2006, Order. [See Docket No. 71]. Although a party cannot normally appeal the denial of

summary judgment, government officials who raise the issue of qualified immunity in motions for summary judgment are entitled to an immediate review on such issue. See Mitchell v.

Forsyth, 472 U.S. 511, 524-530 (1985) (authorizing interlocutory appeal of adverse qualified immunity determination by district court); Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994). 3. On March 21, 2006, this Court ordered Plaintiff to respond to Defendants' Motion

for Reconsideration of this Court's March 8, 2006, Order on or before March 31, 2006. [See Docket No. 73]. 4. On March 31, 2006, the undersigned was contacted by the office of Plaintiff's

counsel concerning an extension of time for Plaintiff to respond to Defendants' Motion for Reconsideration of this Court's March 8, 2006, Order. At the time Plaintiff conferred with

Defendants concerning her Motion for Extension of Time, Defendants were under the impression that Plaintiff sought an extension of two weeks not two days as is indicated in Plaintiff's Motion for Extension. [See Docket No. 74]. However, Defendants would oppose any extension of time because of the time-constraints associated with undertaking an interlocutory appeal on the issue of qualified immunity in this matter. 5. As discussed in Defendants' Motion for Reconsideration of this Court's March 8,

2006, Order, pursuant to Fed. R. App. P. 4(a)(1)(A), Defendants' Notice of Appeal on the issue of qualified immunity must be filed on or before April 7, 2006. According to Plaintiff's Motion 2

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for Extension of Time, she will not file her Response until April 3, 2006, only four days before Defendants must file their Notice of Appeal. As noted by this Court's Order shortening the

briefing schedule and requiring Plaintiff to file a Response within sixteen days of the fling of the i Motion, the Court may require additional time to undertake a reconsideration of this Court's March 8, 2006, Order, including time for Defendants to reply to any arguments raised in Plaintiff's Response to the Motion for Reconsideration. 6. Filing a Notice of Appeal when a motion concerning the issues that will be raised

in such Notice could still be under review would not be beneficial to the courts or parties in this matter. 7. Accordingly, Defendants respectfully request that this Court issue an Order

vacating its March 8, 2006, Order pending the resolution of the Motion for Reconsideration. To any extent that Plaintiff seeks more time to respond to the Motion for Reconsideration, as well as to any extent that Defendants seek to reply to that Response, Defendants continue to seek either an order reconsidering the March 8, 2006, Order, or vacating that Order until the Court can consider the record for a reconsideration. 8. Again, requiring Defendants to file a Notice of Appeal while the Motion for

Reconsideration is pending would waste judicial and the parties' time and resources.

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WHEREFORE, for all of the foregoing reasons, Defendants respectfully request this Court issue an Order vacating its March 8, 2006, Order pending the resolution of the Motion for Reconsideration, and for all other and further relief as this Court deems just and appropriate. Dated this 3rd day of April 2006. Respectfully submitted,

s/ Edmund M. Kennedy 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 ILONA EUBANK, OFFICER ANAYA, and OFFICER WILKS

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CERTIFICATE OF MAILING I hereby certify that on this 3rd day of April 2006, I electronically filed the foregoing RESPONSE TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTION FOR RECONSIDERATION OF THIS COURT'S MARCH 8, 2006, ORDER with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: Marcel Krzystek [email protected] [email protected] David Arthur Lane [email protected] [email protected] Mari Anne Newman [email protected] [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: Marsha Edney, Esq. U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave N.W., #7148 Washington, DC 20530

s/Marlene Wilson, Legal 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 ILONA EUBANK, OFFICER ANAYA, and OFFICER WILKS

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