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


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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' 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 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 March 13, 2006, by electronic mail concerning the intent to file the instant Motion and to request Plaintiff's position on the motion. Defendants received a

response from Mr. Lane indicating Plaintiff opposes this motion. Defendants also conferred with Marsha Edney, counsel for the intervenor, the United States of America, and Ms. Edney had indicated that the United States of America takes no position in regard to this Motion.

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INTRODUCTION On March 8, 2006, this Court issued an Order denying Defendants' Motion for Summary Judgment on the sole basis that the physical injury requirement of the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. §1997e(e), did not bar Plaintiff's claims. [See Docket No. 68].1 In the ruling, this Court relied heavily upon an Eighth Circuit opinion, Pool v. Sebastian County, Arkansas, 418 F.3d 934 (8th Cir. 2005), a case never discussed by the Tenth Circuit, to determine that prolonged labor and the death of an unborn fetus meets the physical injury requirement of the PLRA. Because the clear intent of the PLRA is to prevent persons confined in prison from bringing suit against prison officials, any determination limiting the restrictions of the PLRA's physical injury requirement is a controlling question of law requiring an interlocutory appeal because such a determination materially affects the course of litigation and the reversal of such a determination would result in substantial savings of judicial and participants' resources, while also materially advancing the ultimate termination of this action. As such, 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 when a prisoner experiences prolonged labor resulting in a stillbirth.

Six other contentions offered to support summary judgment for Defendants, set out in the Motion for Summary Judgment, were not addressed by this Court's March 8, 2006, Order. Contemporaneously with this Motion, Defendants have filed a Motion for Reconsideration of this Court's Order, requesting the Court address the remaining issues raised in the Motion for Summary Judgment.

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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 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

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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). ARGUMENT Under the PLRA, absent a physical injury, an incarcerated plaintiff is barred from bringing suit against prison officials. In pertinent part, the PLRA provides: No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of a physical injury. 42 U.S.C. § 1997e(e). the Tenth Circuit, in applying this provision, concludes that "although

`mental and emotional distress can constitute a compensable injury in suits for damages under 42 U.S.C. § 1983 based upon violations of constitutional rights [§ 1997e(e) provides] that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms.'" Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 807 (10th Cir. 1999) (quoting Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997); alteration in original)). The PLRA physical injury requirement applies to all types of claims brought by prisoners, no matter what constitutional right is alleged to be violated. "The statute limits the remedies available, Searles v. Van

regardless of the rights asserted, if the only injuries are mental or emotional."

Bebber, 251 F.3d. 869, 876 (10th Cir. 2001). Further, the physical injury requirement is claimspecific. An incarcerated plaintiff must allege a physical injury with respect to each claim, not 4

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simply that she suffered a physical injury on at least one claim of many contained in her lawsuit. Turner v. Schultz, 130 F.Supp.2d 1216, 1223 (D. Colo. 2001) (Babcock, C.J.); Marrie v. Nickels, 70 F.Supp.2d 1252, 1264 (D. Kan. 1999). Accordingly, absent proof that Plaintiff suffered a physical injury, Plaintiff's 42 U.S.C. § 1983 claims against Defendants are barred by the PLRA. In essence, without a physical injury, Defendants are immune from suit in this action. Case law suggests that an issue that bars See, e.g.,

prosecution is of such importance that certification of such issue is appropriate.

McSurely, 697 F.2d at 316, n.12 (certification pursuant to § 1292 is appropriate when a determination of the claims at issue would bar prosecution). This Court's determination

concerning the physical injury requirement of the PLRA "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 could materially advance the ultimate termination of litigation." See 28 U.S.C. § 1292(b). Additionally, appellate review will greatly assist in determining the outcome and future course of this action, creating a situation where an interlocutory appeal on the issue of the physical injury requirement of the PLRA would be appropriate. Burken, 930 F.2d at 1206. This Court, in its March 8, 2006, Order, concludes that Plaintiff's prolonged labor and the death of her fetus satisfies the physical injury requirement of the PLRA. [ See Docket No. 68, at 5]. This conclusion is not based on any clear definition of what constitutes a physical injury for purposes of the PLRA but on the appellate courts requirement of a "less-than-significant-butmore-than-de minimis physical injury." [Id. at 6 (citing a number of appellate court decisions

addressing the physical injury requirement of the PLRA)].

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In its Order, the Court concludes that the Tenth Circuit "has suggested that although allegations of physical pain alone may be insufficient to overcome the PLRA bar, when paired with allegations of more tangible physical effects, they state a valid claim. [Id. at 7 (citing

Sealock v. Colorado, 218 F.3d 1205, 1210, n.6 (10th Cir. 2000) (emphasis added)]. This Court determined prolonged labor and the death of Plaintiff's fetus must be considered, as a matter of law, a more tangible physical effect sufficient to meet the physical injury requirement of the PLRA. [Id. at 10 through 11]. However, none of the cases cited by this Court, including those decided by the Tenth Circuit, reached the conclusion that this Court reached, i.e. that prolonged labor and the death of Plaintiff's fetus was sufficient to meet the physical injury requirement of the PLRA. [Id. at 7

through 13]. In fact, the only case addressing the issue of a pregnant inmate was Pool, supra, and that Eighth Circuit case was never cited in any Tenth Circuit decision. That decision also does not address whether prolonged labor and the death of a fetus is sufficient to meet the physical injury requirement of the PLRA. See Pool, 418 F.3d at 942 (issue is that of qualified immunity, not the physical injury requirement of the PLRA). As such, a controlling question of law exists as to the proper application of the physical injury requirement of the PLRA and this Court's Order requires reversal if the Tenth Circuit determines that the Order was incorrect. Any such reversal would materially affect the course of litigation with resulting savings of this Court's and the parties' resources, making certification of this controlling question appropriate. See Burken,

930 F.2d at 1206 (a question is controlling if interlocutory reversal would save time for the district court, and time and expense for the litigants).

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Further, the Order's utilization of tort law as a method of determining what constitutes a physical injury for purposes of the PLRA is not supported by any Tenth Circuit decision, nor do Defendants find any other Circuit Court of Appeals that utilizes tort law for such purposes. In fact, the United States Supreme Court indicates a reluctance to utilize tort law to determine whether a constitutional right was violated. See, e.g., Town of Castle Rock v. Gonzalez, 125 S. Ct. 2796 (2005) (stating that courts must be reluctant to treat constitutional rights as a font of tort law). As such, any reliance on tort l w to determine the viability of a § 1983 claim in relation to a the physical injury requirement of the PLRA must be considered a controlling issue of law that requires interlocutory review by the Tenth Circuit prior to this case proceeding to trial. See

Swint, 514 U.S. at 47-7 (certification is appropriate in cases where an order is deemed pivotal and debatable to the resolution of the action). This Court also discusses the "common sense" approach of the Second Circuit as support for its determination. [ See Docket No. 68 at 18 (relying on Liner v. Goord, 196 F.3d 132 (2nd Cir. 1999) (a case never cited by the Tenth Circuit for the proposition advanced by this Court)]. The Tenth Circuit never indicated any inclination to adopt this approach, nor has it indicated that if adopted, the approach would lead to the conclusion adopted by this Court. As such, the Order should be certified for review by the Tenth Circuit to permit determination of whether such an approach should be adopted in this Circuit. Additionally, this Court interprets Perkins v. Kansas Dep't of Corrections, 165 F.3d 803 (10th Cir. 1999) and Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001), to determine that a prolonged labor and the death of a fetus is sufficient to meet the physical injury requirement of the PLRA. [See Docket No. 68, at 18 through 24]. No Tenth Circuit opinion embraces this 7

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interpretation, nor do Defendants find any other Circuit opinion that supports this interpretation. As such, the reading given Perkins and Searles by the Court should be reviewed by the Tenth Circuit to determine whether that Court concurs with the analysis of its opinions. The Court's

decision on a controlling question of law was not earlier addressed by any appellate court, including the Tenth Circuit. If that position is not adopted on appeal, a reversal will materially affect the course of litigation in this matter. For such reasons, this is a decision that should be certified pursuant to 28 U.S.C. § 1292(b) to determine the Tenth Circuit outlook concerning the physical injury requirement of the PLRA. Lastly, as discussed in Defendants' Motion for Reconsideration of this Court's March 8, 2006, Order in which this Court denied Defendants' Motion for Summary Judgment, filed in conjunction with this Motion, Defendants will be seeking an interlocutory appeal on the issue of qualified immunity. As such, 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. WHEREFORE, for all of the foregoing reasons, 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 when a prisoner experiences prolonged labor resulting in a stillbirth,

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and for all other and further relief as this Court deems just and appropriate. Dated this 17th day of March 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 SERVICE (CM/ECF) I HEREBY CERTIFY that on this 17th day of March, 2006, I electronically filed the foregoing DEFENDANTS' MOTION FOR RECONSIDERATION 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 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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