Free Reply to 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 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' REPLY IN SUPPORT OF RENEWED 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 Reply in Support of Renewed Motion for Certification, Pursuant to 28 U.S.C. § 1292(b) of this Court's March 8, 2006, Order, as follows: INTRODUCTION On December 18, 2006, this Court issued an Order denying the remaining issues contained in Defendants' Motion for Summary Judgment, including Defendants' entitlement to qualified immunity. [See Docket No. 92]. Based on that Order, Defendants filed a Notice of Appeal pertaining to this Court's denial of Defendants' entitlement to qualified immunity to the Tenth Circuit. [See Docket No. 93]. Based on the pending interlocutory appeal, Defendants renewed their previous Motion for Certification, pursuant to 28 U.S.C. § 1292(b), based on this Court's denial of that portion of Defendants' Motion for Summary Judgment that contended the

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physical injury requirement of the Prison Litigation Reform Act (PLRA), 42 U.S.C. §1997e(e), barred Plaintiff's claims. [See Docket No. 95]. On January 31, 2007, Plaintiff filed a Response to the Motion for Certification. [See Docket No. 107]. Defendants now submit this Reply in Support of their Motion for Certification and 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. ARGUMENT Defendants have initiated an interlocutory appeal based on this Court's denial of Defendants' entitlement to qualified immunity. The issue before the Tenth Circuit, Defendants' entitlement of qualified immunity, will be reviewed by the appellate. Under such circumstances, it makes eminent sense to have the Tenth Circuit review the PLRA's physical injury issue along with the issue of qualified immunity. Specifically, an overlap exists between the two issues because the Tenth Circuit must address whether Plaintiff suffered any violation of her own constitutional rights based on the applicable law, including the law pertaining to the PLRA's physical injury requirements, as part of its qualified immunity analysis. Accordingly, any review by the Tenth Circuit would also implicate an analysis of the PLRA issue. No benefit exists from delaying the Tenth Circuit's review of this Court's analysis of the PLRA's physical injury requirement since appellate review of qualified immunity would implicate the PLRA issue as well. 1. The Issue Of Whether Plaintiff Suffered a Physical Injury Is A Question of Law.

Contrary to Plaintiff's assertion, whether Plaintiff's "prolonged labor" constitutes a sufficient physical injury is a question of law because, absent proof that Plaintiff suffered a

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physical injury, her 42 U.S.C. § 1983 claims against Defendants are barred by the PLRA. Although Defendants agree with Plaintiff that whether she actually experienced "prolonged labor" is a fact in dispute that will be left for a jury to determine, 1 the issue of whether "prolonged labor" is a sufficient physical injury under the PLRA is a question of law. See, e.g., Scanlon White, Inc. v. Commissioner of Internal Revenue, 472 F.3d 1173 (10th Cir. 2006) (interpretation of a federal statute is a question of law). Any suggestion by Plaintiff that whether she meets the PLRA's physical injury requirement presents a factual question for determination by a jury is absurd. Defendants locate no precedent submitting any PLRA issue to a jury for determination. In the March 8, 2006, Order, this Court concludes, as a matter of law, 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-but-more-than-de minimis physical injury." [Id. at 6 (citing a number of appellate court decisions addressing the physical injury requirement of the PLRA)]. Contrary to Plaintiff's assertion, this determination clearly "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). 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

It should be noted that no evidence has been presented establishing that Plaintiff experienced "prolonged labor" let alone "she was forced to undergo two days of agonizing labor" as contended by Plaintiff in her Response.

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of the PLRA would be appropriate. See, e.g., Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) (a question is controlling when it will affect "the outcome or even the future course of the litigation"). 2. Substantial Ground For Differing Opinions As To Whether "Prolonged Labor" Meets The Physical Injury Requirement of the PLRA Exists.

As noted in this Court's March 8, 2006, Order, the "PLRA provides no statutory definition for the term physical injury." [See Docket No. 68, at 6]. This Court painstakingly examines cases throughout the United States before determining that, based on its review of numerous precedent, Plaintiff's "prolonged labor" combined with the stillbirth of her child is sufficient to meet the physical injury requirements of the PLRA. [Id. at 5 through 17 (citing cases from various circuits for purposes of determining whether Plaintiff's claims satisfy the physical injury requirements of the PLRA)]. The fact that this Court reviewed over twenty cases from ten different circuits and at least two different state courts supports Defendants' position that substantial ground for a difference of opinion exists, requiring review of this Court's determination by the Tenth Circuit. See 28 U.S.C. § 1292(b). Contrary to Plaintiff's assertions, this Court cannot and must not base its

decision whether to certify the PLRA issue on whether this Court believes its decision is correct or even whether this Court believes the Tenth Circuit is likely to affirm this Court's determination. Instead, this Court must conclude that no rational argument on appeal The painstaking examination of case law

challenging this Court's decision can be made.

contained in the March 8, 2006, Order, in and of itself, supports a conclusion that a substantial ground for differing opinion exists.

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3.

An Immediate Appeal Could Materially Advance The Ultimate Termination Of The Litigation.

Contrary to Plaintiff's assertion, if, upon review, it is determined that Plaintiff's "prolonged labor" and the stillbirth of her child are insufficient to meet the physical injury requirements of the PLRA, such action would materially advance the ultimate termination of this matter. In re

Vitamins Antitrust Litigation, 2000 WL 673936 at *2 (D.D.C. Jan. 27, 2000) (Civ. No. 99-197) ("[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."). If the Tenth Circuit disagrees with this Court's conclusion based on its interpretation of the various case law relied upon in the March 8, 2006, Order, such action by the Tenth Circuit would potentially terminate this matter in its entirety, or, at the very least, save substantial resources, fully justifying appellate review of this issue pursuant to 28 U.S.C. § 1292(b). Moreover, an additional opinion on the scope of the physical injury requirement of the PLRA in this context could aid in the resolution of many future prisoner lawsuits since the PLRA requirements apply to all federal prisoner litigation. 4. Certification of the PLRA Issue would not expand the scope of Appellate Review.

Lastly, as discussed in the Renewed Motion for Certification, the interlocutory appeal of the issue of qualified immunity provides an appropriate occasion for the Tenth Circuit to also review this Court's decision pertaining to the PLRA's physical injury requirement. As discussed previously, an overlap exists between the two issues because the Tenth Circuit must address whether Plaintiff suffered any violation of her own constitutional rights based on the applicable law, including the law pertaining to the PLRA's physical injury requirements, as part of its

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qualified immunity analysis. Based on Defendants seeking an interlocutory appeal on the issue of qualified immunity, certification pursuant to 28 U.S.C. § 1292(b) to obtain a decision from the Tenth Circuit concerning the physical injury requirement of the PLRA will have no additional effect on the process of these proceedings, nor would such review expand the scope of review, because the mandatory appellate review allowed for qualified immunity will preclude any further proceedings in this action until resolved, a resolution that clearly implicates this Court's determination of the physical injury requirement of the PLRA. WHEREFORE, for all of the foregoing reasons, as well as those articulated in the Renewed Motion for Certification and the previous Motion for Certification, 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, and for all other and further relief as this Court deems just and appropriate. Dated this 6th day of February 2007. Respectfully submitted,

s/ Edmund M. Kennedy Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. 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 6th day of February 2007, I electronically filed the foregoing DEFENDANTS' REPLY IN SUPPORT OF RENEWED 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 email 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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