Free Motion for Reconsideration - 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. ______________________________________________________________________________ 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 Motion for Reconsideration of this Court's March 8, 2006, Order in which this Court denied Defendants' Motion for Summary Judgment, 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/BACKGROUND 1. On April 15, 2002, Defendants Ilona Eubank, Iria Wilks, and Dawn Anaya filed a In their Motion, Defendants asserted summary judgment was

Motion for Summary Judgment.

appropriate on six separate bases. First, Plaintiff cannot enforce any rights of another, including an unborn fetus, pursuant to 42 U.S.C. § 1983. Second, Plaintiff suffered no physical injury by virtue of anything alleged in this matter, as required under the Prison Litigation Reform Act (PLRA). Third, each individual Defendant is entitled to qualified immunity from the Plaintiff's

§ 1983 claims, because Plaintiff cannot demonstrate any violation of a clearly established constitutional right. Fourth, Plaintiff's intentional infliction of emotional distress or outrageous

conduct claim fails because Plaintiff cannot establish that any of the individual Defendants' conduct was utterly atrocious and beyond the bounds of civilized society. Fifth, Plaintiff alleges insufficient facts to support her retaliation claim. Sixth, Plaintiff cannot demonstrate that any of

the Defendants acted with sufficient recklessness, willfulness or wantonness to support any claim for punitive damages. [See Docket No. 23]. 2. On April 17, 2002, this Court issued an Order Striking Defendants' Motion for

Summary Judgment based on pending settlement negotiations. [See Docket No. 25]. 3. On April 26, 2002, Defendants resubmitted their Motion for Summary Judgment

citing the propriety of filing a Motion for Summary Judgment while settlement negotiations proceeded. [See Docket No. 26]. 4. On the same date, Defendants filed a Motion to Stay Pending Determination of

Entitlement to Qualified Immunity. [See Docket No. 28].

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5.

This Court accepted the second filing of the Motion for Summary Judgment.

However, on May 17, 2002, this Court issued an Order Denying Motion to Stay Pending Determination of Entitlement to Qualified Immunity. [See Docket No. 35]. 6. On July 9, 2002, Plaintiff sought and was granted a Motion for Extension of Time

to Respond to the Motion for Summary Judgment. [See Docket Nos. 40 and 41]. 7. On August 8, 2002, Plaintiff filed a Motion to Recognize the Constitutional and

Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 42]. 8. On the same date, Plaintiff sought a Second Extension of Time to Respond to

Motion for Summary Judgment Pending a Court Ruling on the Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 43]. 9. On August 13, 2002, before Defendants could respond to Plaintiff's Motions

respecting briefing on the Motion for Summary Judgment (Plaintiff did not confer with Defendants respecting such motions), the Court granted Plaintiff ten (10) days following a ruling on the Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants argument concerning the PLRA to Respond to Defendants' Motion for Summary Judgment in its entirety. [See Docket Nos. 44 and 45]. 10. On the same date, Defendants filed a Motion to Reconsider this Court's Order

based on the facts that the Motion for Summary Judgment contained multiple arguments that could be the basis for summary judgment without reaching the Constitutional issue of the PLRA

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and that full briefing of the summary judgment motion should be completed prior to any resolution of any constitutional issue. [See Docket No. 46]. 11. On August 14, 2002, this Court issued an Order rejecting Defendants'

reconsideration request. [See Docket No. 47]. 12. On August 30, 2002, Defendants filed a Response to Motion to Recognize the

Constitutional and Human Rights of Prison Inmates in relation to Defendants argument concerning the PLRA. [See Docket No. 48]. 13. On September 23, 2002, Plaintiff filed a Reply to Response to Motion to

Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants' argument concerning the PLRA. [See Docket No. 53]. 14. On January 27, 2003, the intervenor, the United States of America, filed a

Response to Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants argument concerning the PLRA. [See Docket No. 58]. 15. No further rulings or briefing occurred until Plaintiff, on October 20, 2005, filed a

Motion for Ruling on Defendants' Motion for Summary Judgment. [See Docket No. 64]. 16. Upon receipt of the Motion, Defendants contacted counsel for Plaintiff to inform

him that the Motion for Summary Judgment was not yet briefed and that a Court Ruling on the Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants argument concerning the PLRA was the appropriate request. 17. The following day, on October 21, 2005, Plaintiff filed an Amended Motion for [See Docket No.

ruling on Defendants' Motion for Summary Judgment, clarifying her request. 65]. 4

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18.

On October 21, 2005, this Court issued an Order granting Plaintiff's request and

indicating that a ruling would be announced in the early part of 2006. [See Docket No. 66]. 19. Defendants' Motion for Summary Judgment was never fully briefed to this day.

Plaintiff did not respond to any arguments raised in Defendants' Motion for Summary Judgment other than as contained in Plaintiff's Motion to Recognize the Constitutional and Human Rights of Prison Inmates in relation to Defendants argument concerning the PLRA. [See Docket No. 42]. 20. 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. [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. [ d.]. Thus, based on the ruling pertaining to the I

PLRA only found issue in this Court's March 8, 2006, Order and in conjunction with this Court's previous Orders, Plaintiff should be required to respond to the remaining issues raised in Defendants' Motion for Summary Judgment within ten (10) days this Court's March 8, 2006, Order. [See Docket Nos. 44 and 45]. ARGUMENT Defendants' Motion for Summary Judgment raises multiple issues, including an entitlement to qualified immunity, not addressed in this Court's March 8, 2006, Order. 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 5

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review on such issue.

See Mitchell v. Forsyth, 472 U.S. 511, 524-530 (1985) (authorizing Because

interlocutory appeal of adverse qualified immunity determination by district court).

Plaintiff never addressed the issue of qualified immunity in response to Defendants' Motion for Summary Judgment, and in the absence of any articulation by the Court of any position concerning each individual Defendant's entitlement to qualified immunity in this case, the Tenth Circuit could not address an interlocutory appeal on the issue of qualified immunity. In such

circumstances, that Court in the past directed the entry of a specific determination by the district court. See, e.g., Eden v. Voss, 105 Fed. Appx. 234, 245 (10th Cir. 2004) (remanding to the district court to address the qualified immunity issue because qualified immunity is an objective legal inquiry requiring a fact-specific determination by the district court). Further, the death of Plaintiff's unborn fetus forms a substantial basis for this Court's determination that Plaintiff's claims survive the physical injury requirement of the PLRA. This

conclusion never addresses Defendants' argument that the Tenth Circuit has long held that one cannot enforce the rights of another pursuant to 42 U.S.C. § 1983. In such circumstances, any meaningful review could be expected to prompt a directive requiring such analysis. Lastly, Defendants, through the summary judgment motion filed, raised issues

concerning a number of Plaintiff's other claims that were never addressed by this Court in its March 8, 2006, Order. 1. Qualified Immunity

On several occasions, the Tenth Circuit concluded a district court's failure to address or its postponement of consideration of an individual defendant's assertion of qualified immunity is immediately appealable under the collateral order doctrine. Lowe v. Town of Farland, 143 F.3d 6

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1378, 1380 (10th Cir. 1998); Workman v. Jordan, 958 F.3d 332, 336 (10th Cir. 1992). In Workman, the Tenth Circuit recognized that a district court's decision to postpone consideration of qualified immunity meant the public official would be subject to the burdens of pretrial discovery and trial in identical fashion as if qualified immunity was actually denied. Id. at 335. Similarly, in Lowe, the Tenth Circuit held these principles were of equal applicability when a district court either fails to consider or refuses to consider an assertion of qualified immunity. Lowe, 143 F.3d at 1380. In Lowe, the court reasoned, "[r]egardless of whether a district court merely postpones its ruling or simply does not rule on the qualified immunity defense, if we deny appellate review, a defendant loses the right not to stand trial." Id. (alteration added). In addition, the Fourth Circuit described the problem of a district court failing to address the merits of a qualified immunity defense as follows: [W]hen a district court declines to give a qualified immunity defense at the dismissal stage of litigation a hard look, it risks unwittingly the forfeiture of some protections afforded by that defense. Qualified immunity includes an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal immunity question. It is therefore incumbent on the courts to review the immunity defense critically at an early stage of the proceedings to determine the legal questions of whether the plaintiff has asserted a violation of a constitutional right and, if so, whether the constitutional right allegedly violated was clearly established at the time the defendant acted. McVey v. Stacy, 157 F.3d. 271, 275 (4th Cir. 1998) (citations, internal quotation marks and alteration omitted, and alteration added). Under such precedents, Defendants should be able to secure an immediate review of this Court's March 8, 2006, Order by the Tenth Circuit to address their entitlement to qualified immunity. To address Defendants' entitlement to qualified immunity in the most appropriate manner, the Tenth Circuit should be allowed the benefit of this Court's analysis, as well as the 7

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opportunity to review the position of Plaintiff.

To this end, Defendants file the instant Motion.

Pursuant to Fed. R. App. P. 4(a)(1)(A), Defendants' Notice of Appeal must be filed on or before April 7, 2006. Defendants respectfully request that this Court reconsider its Order of March 8, 2006, and provide Plaintiff an opportunity to respond to the unresolved issues raised in Defendants' Motion for Summary Judgment, including Defendants' entitlement to qualified immunity. Absent a fully briefed and decided Motion for Summary Judgment, the Tenth Circuit will lack the necessary record to make a proper determination and may direct that a specific decision on qualified immunity be entered. Otherwise, pursuant to Lowe and Workman, the

absence of any ruling on Defendants' qualified immunity deprives Defendants of an immunity defense to which they are entitled. Defendants are entitled to qualified immunity from Plaintiffs' 42 U.S.C. § 1983 claims. To survive Defendants' assertion of qualified immunity, a plaintiff must first demonstrate the individual defendant's conduct violated the law by coming forward with specific facts to establish the violation. Taylor v. Meacham, 82 F.3d 1556, 1559 (10th Cir.), cert. denied, 117 S.Ct. 186 (1996). "Plaintiff has the `burden to show with particularity facts and law establishing the inference that defendant violated a constitutional right.'" Abeyata By & Through Martinez v. Chama Valley Ind. Sch. Dist. No. 19, 77 F.3d 1253, 1255 (10th Cir. 1996) (quoting Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994)). A plaintiff suing public officials must set forth specific facts showing the personal involvement of each named individual defendant. Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997); Mitchell v Maynard, 80 F.3d 1433, 1441 (10th . Cir. 1996). Conclusory, nonspecific and generalized allegations of constitutional deprivations

are insufficient. Pride v. Does, 997 F.2d 712, 716 (10th Cir. 1993). In this case, because Plaintiff 8

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never responded to Defendants' Motion for Summary Judgment, Plaintiff never offered any factual basis to support any claim against any Defendant. Second, Plaintiff must also prove the relevant law was clearly established when the alleged violation occurred. "To be clearly established, `[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Albright, 51 F.3d at 1535 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The right must be clearly established in a "particularized" sense. Anderson, 483 U.S. at 640.

The plaintiff need not establish a "precise correlation between the then-existing law and the case at hand," Patrick v. Miller, 953 F.2d 1240, 1249 (10th Cir. 1992), but the plaintiff must demonstrate substantial factual correspondence. 131 (10th Cir. 1990). Hannula v. City of Lakewood, 907 F.2d 129,

For a right to be "`particularized,' there must ordinarily be a Supreme

Court or Tenth Circuit decision on point, or `clearly established weight of authority' from other courts." Wilson, 52 F.3d at 1552 (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). See also Wilson v. Layne, 526 U.S. 603, 616 (1999). Again, because Plaintiff never answered Defendants' Motion for Summary Judgment, Plaintiff never offered any law that could support any claim against any Defendant. Defendants assert, in detail, the basis for each individual's entitlement to qualified immunity in their Motion for Summary Judgment. Plaintiff never provided any basis for

denying such entitlement and the Court did not address any of the arguments raised in Defendants' Motion for Summary Judgment concerning qualified immunity in the March 8, 2006, Order. As such, Defendants respectfully request this Court reconsider its March 8, 2006, Order, vacate same, and direct Plaintiff to respond to Defendants' Motion for Summary 9

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Judgment, and allow Defendants to reply to same, prior to issuing any further Order respecting that Motion. 2. Additional Issues

The physical injury requirement of the PLRA was an issue raised in Defendants' Motion for Summary Judgment. All other issues raised, including qualified immunity should be fully

briefed by the parties before any further summary judgment ruling is issued by the Court. Defendants also raised issues concerning Plaintiff's (1) inability to enforce the rights of another, including an unborn fetus, pursuant to 42 U.S.C. § 1983; (2) failure to establish a claim of intentional infliction of emotional distress or outrageous conduct claim because Plaintiff cannot establish that any of the individual Defendants' conduct was utterly atrocious and beyond the bounds of civilized society; (3) failure to provide sufficient facts to support her retaliation claim; and lastly, (4) failure to demonstrate that any of the Defendants acted with sufficient recklessness, willfulness or wantonness to support any claim for punitive damages. Defendants request that the Court direct the parties to complete the briefing necessary to resolve all issues raised in Defendants' Motion for Summary Judgment. Failure to resolve the

issues raised in Defendants' Motion for Summary Judgment has the potential to cause problems in further proceedings and will not assist in clarifying or streamlining any trial of this matter.

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WHEREFORE, for all of the foregoing reasons, Defendants respectfully request this Court reconsider its March 8, 2006, Order, 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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