Free Response to Motion - 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' RESPONSE TO PLAINTIFF'S MOTION TO CERTIFY DEFENDANTS' APPEAL AS FRIVOLOUS AND/OR DILATORY ______________________________________________________________________________ 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 to Certify Defendants' Appeal as Frivolous and/or Dilatory, 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]. On January 15, 2007, Defendants filed a Notice of Appeal, seeking an interlocutory appeal of this Court's denial of Defendants' entitlement to qualified immunity. [See Docket No. 93]. On January 24, 2007, Plaintiff filed a Motion to Certify Defendants' Appeal as Frivolous and/or Dilatory. [See Docket No. 102]. For the reasons set forth below, Defendants respectfully request this Court deny Plaintiff's Motion.

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ARGUMENT "A federal district court and a court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). This principle works the other way as well, and courts of appeals have no jurisdiction to review orders of the district court until there is a final decision. Id. However, the United States Supreme Court has held that there is a small class of decisions "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949). For appeals of decisions falling within the collateral order exception, the Supreme Court has given 28 U.S.C. § 1291 a "practical rather than a technical construction," and held that these types of interlocutory appeals ought to be treated as appeals from final decisions. Id. Appeals from the denial of summary judgment based on qualified immunity falls within the collateral order exception. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Only upon a certification by the district court that Defendants' appeal is frivolous may that court retain jurisdiction. 1 See Stewart v. Donges, 915 F.2d 572, 574 (10th Cir. 1990). However, the standard for such a certification is extremely high. Only if a claim of qualified

It should be noted that a certification of an interlocutory appeal as frivolous does not stop the appeal but allows "the district court [to] hold the trial while the [] appeal is pending. Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989). 2

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immunity is so baseless that no argument or debate can be made against the adverse qualified immunity ruling may a court certify the appeal as frivolous. See Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). Importantly, any determination that Defendants' qualified immunity appeal is frivolous by this Court cannot and must not be based 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 may only certify the appeal as frivolous if this Court concludes Defendants cannot make any rational argument on appeal challenging this Court's qualified immunity decision. Judged against this imposing threshold, Plaintiff's attempt to certify Defendants' qualified immunity appeal as frivolous fails as a matter of law. 1. Plaintiff's Assertion That The Appeal Is Frivolous Because The Law Is Clearly Established Lacks Merit.

Plaintiff presents no published Tenth Circuit opinion, nor did Defendants discover any, that certify an interlocutory appeal based on qualified immunity as frivolous. Plaintiff provides this Court with one unpublished decision of the United States District Court for the District of Arizona in which an appeal of an adverse qualified immunity decision was certified as frivolous in an action addressing deliberate indifference to inmate-to-inmate assaults. [See Plaintiff's Motion to Certify Defendants' Appeal as Frivolous and/or Dilatory, Exhibit 1]. Plaintiff's effort to equate a ruling addressing inmate-to-inmate assaults with a case dealing with a pregnant inmate is disingenuous. Whether the law is clearly established as to the protections afforded inmates in inmate-to-inmate assaults does not bear on the issues presented in this action, whether pregnancy, alone, is a sufficiently serious medical condition, as asserted by Plaintiff in her Motion. The dearth of any precedent declaring an appeal on qualified immunity frivolous is telling. For this Court to declare Defendants' interlocutory appeal frivolous, this Court must

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conclude that of all the thousands of similar appeals to the Tenth Circuit, this one is so baseless as to be deemed frivolous. Nothing about the qualified immunity issues presented here warrants any such declaration by this Court. Plaintiff failed to demonstrate something particularly unique exits in this case to distinguish it from all the other qualified immunity appeals that preceded it subsequent to the decision in Stewart, decided seventeen years ago. A. Defendants Anaya and Wilks.

A closer examination of the cases cited in Plaintiff's Motion contradicts her assertion that "[f]ederal courts have consistently held that a delay in medical care to a pregnant inmate meets the legal standard established by Estelle v. Gamble[, 429 U.S. 97 (1976]." In fact, "pregnancy is generally not, alone, a serious medical need." See Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997). Plaintiff's allegations in this case are so far removed from those alleged in the cases cited that, arguably, the Tenth Circuit could conclude that these Defendants were not provided "fair warning" that Plaintiff was suffering a serious medical need based on her mere statement that she was in labor without any visible signs of labor. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (if a district court determination is debatable an appeal is not frivolous). As alleged by Plaintiff, besides encounters with Defendant Anaya and Defendant Wilks, Plaintiff showed no sign of trouble, nor did she seek assistance from any other corrections officer over a six-hour period. [See, e.g., Clifton Dep., p. 19, l. 1, p. 29, l. 1, attached as Exhibit A to Motion for Summary Judgment, Docket No. 30]. This is a far cry from the cases cited by Plaintiff in support of her assertion that pregnancy, alone, is a serious medical need and that Defendants appeal is so baseless as to be considered frivolous.

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In Archer v. Dutcher, 733 F.2d 14 (1984), the allegations were that the plaintiff was "suffering torturous cramping and vaginal bleeding," as well as continuously crying for help. Archer 733 F.2d at 15-16. In Coleman v. Rahija, 114 F.3d 778 (8th Cir 1997), the defendant had actual knowledge of the plaintiff's "long history of problematic pregnancies" and was aware of plaintiff's bleeding. Coleman, 114 F.3d at 781-83. The court further noted that the medical professional defendant in Coleman, upon conducting an examination, concluded "that Coleman was in `possible early labor.'" Id. at 783. In Boswell v. County of Sherburne, 849 F.2d 1117 (8th Cir. 1988), the defendants again had actual knowledge "that Boswell was six and one-half months pregnant and was having a problem pregnancy" and that the plaintiff again was bleeding and continually crying for help. Boswell, 849 F.2d at 1119-20. Lastly, in Herrera v. Valentine, 653 F.2d 1220 (1981), the plaintiff was "visibly in the latter months of pregnancy" and "was kicked in the stomach" by the defendant. Herrera, 653 F.2d at 1222. Following being kicked in the stomach, handcuffed, and thrown into the back of a police car, the plaintiff requested medical attention for her pregnancy and such pleas were ignored. Id. Plaintiff fails to establish that any such facts or anything similar offered these Defendants "fair warning" that an inmate merely complaining of labor pain, with no visible signs of a serious medical need, placed Defendant Anaya and Wilks on notice that she required immediate medical attention. See Hope v. Pelzer, 536 U.S. 730, 740, n.10 (2002) (although rejecting a standard for clearly established law that requires the facts of a case to be "materially similar" the Court nonetheless declared that the facts of other cases must provide "fair warning" to establish that the law was clearly established at the time of the incident). In fact, it is clearly debatable whether Plaintiff's own actions during the time period at issue, which must encompass at least six hours,

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would place any lay person on notice that she was confronting a serious medical need sufficient to require intervention, let alone establish that Defendants were deliberately indifferent to a substantial risk of harm to Plaintiff. Defendants Anaya and Wilks possessed no actual

knowledge of Plaintiff's medical history concerning her previous pregnancies, Plaintiff does not claim she was bleeding or otherwise presenting any physical signs of trouble, and did not continuously seek out assistance that was denied. In fact, for over six hours Plaintiff did nothing other than state on two occasions that she did not feel well and believed she may be in labor. These undisputed facts could arguably establish no culpability on the part of Defendants Wilks and Anaya as a matter of law. Plaintiff's claims are based on the basic assertion that a pregnant inmate who complains of not feeling well and states that she believes she is in labor is serious enough a complaint in every instance to compel anyone listening to secure a physician's attention and that failure to do so is deliberately indifferent to the inmate's health. In other words, she argues that every pregnant inmate with a subjective complaint of not feeling well and a self-diagnosed opinion that she is in labor must immediately be seen by a physician or transported to a hospital to avoid a determination that deliberate indifference to the inmate's medical needs occurs, a position that lacks any support in any of the case law cited in Plaintiff's Motion or the briefings during summary judgment. Accordingly, a rational basis exists for debating such a contention, which amounts to claiming that prison inmates dictate when a hospital visit is necessary. Nothing about Plaintiff's core allegations clearly establishes a culpable state of mind on the part of any Defendant. It is debatable as to whether Plaintiff's claims of bad judgment resulting in decisions and actions she challenges as wrong constitute deliberate indifference. In

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other words, it is debatable whether these individuals needed to do something sooner or different than was dictated by their professional judgment at the time. B. Defendant Eubank.

As to Defendant Eubank's entitlement to qualified immunity, a valid debate also exists as to whether this Court's determination was correct. Defendant Eubank was the nurse at CWCF who was confronted by Plaintiff in the evening of December 25, 1998. Applying the principles outlined in the Motion for Summary Judgment, [see Docket No. 30], to the facts of the instant case presents a debate as to whether any factual basis exists to conclude that Ms. Eubank acted with deliberate indifference as a matter of law. Plaintiff acknowledges that Ms. Eubank

examined her on December 25, 1998, and concluded that any contractions were false labor contractions. [See Clifton Dep., p. 122, ll. 5-21, attached as Exhibit A to Motion for Summary Judgment, Docket No. 30]. Plaintiff further acknowledges that on December 26, 1998, Nurse Eubank again provided Plaintiff with an examination and assistance in obtaining additional treatment from a physician's assistant. [Id., p. 65, ll. 3-16]. At best, any assessment performed by Ms. Eubank on December 25, 1998, could be argued to be negligent. However, the fact that the assessment occurred, then Plaintiff went back to her housing unit for approximately twentyfour hours before she sought additional attention could, arguably, establish that Ms. Eubank did not act with deliberate indifference as a matter of law. See Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Berry v. City of Muskogee, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (deliberate indifference requires a higher degree of fault than negligence, or even gross negligence). In fact, in Coleman, supra, a case relied upon by Plaintiff to assert that Defendants' appeal is frivolous, the Court

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determined that the plaintiff's first encounter with the defendant, in which the defendant did not take the plaintiff's vital signs, did not perform a vaginal examination, nor attempt to monitor the baby's heart tones prior to sending the plaintiff back to her cell did not establish any deliberate indifference on the part of the defendant. See Coleman, 114 F.3d 782. It was not until a later visit, upon which the defendant noted that the plaintiff was in "possible early labor" did the defendant have a duty to act and seek further assistance for the plaintiff. Id. at 784. It is undisputed that on December 25, 1998, Nurse Eubank made a professional judgment, based on her examination of Plaintiff, that Plaintiff was not in labor. [See Deposition of Ilona Eubank, p. 41, ll. 23 through 25, attached as Exhibit 7 to Plaintiff's Response to Motion for Summary Judgment]. As such, a valid argument can be raised that Ms. Eubank did not act with deliberate indifference as a matter of law and that this Court's adverse ruling on Defendants' entitlement to qualified immunity is incorrect. The undisputed facts establish that Nurse Eubank undertook to examine Plaintiff and decide a course of action to be taken, making it, at the very least, debatable whether any deliberate indifference by Ms. Eubank prompted anything that happened to Plaintiff. In sum, Defendants asserted their entitlement to qualified immunity and made cogent arguments throughout the proceedings before this Court based on the facts and the law. This Court considered the arguments and denied Defendants' qualified immunity. However, nothing about this Court's determination ever even hinted that frivolity fueled Defendants to pursue their qualified immunity arguments. Defendants appreciate that the issues before this Court are of serious import. Defendants did not appeal this Court's qualified immunity determination to seek any technical advantage or to delay a trial in this matter. Instead, Defendants appeal because of their reasoned and considered decision that this Court's ruling warrants further review by the

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Tenth Circuit. As the United States Supreme Court repeatedly emphasized, a qualified immunity decision presents an important safeguard against lawsuits brought against public officials in their individual capacities. The right to an interlocutory appeal of an adverse qualified immunity decision by a district court is a vital part of qualified immunity jurisprudence. A declaration of a qualified immunity appeal as frivolous holds profound implications and must be reserved for specific and unique cases. This is not such a case. Nothing about the arguments and authorities presented by Defendants in support of their entitlement to qualified immunity are so obvious and so one-sided that no one can say no rational argument exists concerning Defendants entitlement to qualified immunity for consideration by the Tenth Circuit. There may be reason for some sympathy to be felt for Plaintiff and a natural inclination to allow Plaintiff a day in court. However, neither of these notions provides any justification to declare Defendants' interlocutory appeal frivolous. Instead, based on the extremely high

applicable standard, any declaration of frivolousness here is inappropriate as a matter of law. 2. Any Delay In These Proceedings Cannot Be Attributed to Defendants.

Any delay in these proceedings must be attributed to Plaintiff's piece-meal approach to responding to the summary judgment motion, rather than any action by Defendants. Against Defendants' strenuous objection, [see Defendants' Motion for Reconsideration of Court Order, Docket No. 46], this Court granted Plaintiff's motion to extend her time to respond to summary judgment following full briefing and ruling on Plaintiff's Motion to Recognize the Constitutional and Human Rights of Prison Inmates. [See Docket Nos. 44, 45, and 47]. The basis for

Defendants objection to Plaintiff's attempt to a piece-meal approach was, in part, the fact the Motion for Summary Judgment was filed over three months prior and Plaintiff was granted two

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previous extensions to file her response, as well as the fact that a court should avoid reaching constitutional issues when a matter can be decided on other grounds. Additionally, Plaintiff's last request for an extension of time was filed nearly two months after the filing of Defendants' Motion for Summary Judgment, and she mentioned nothing of her intent to file a motion challenging the constitutionality of the Prison Litigation Reform Act (PLRA) or to seek yet another extension of time to respond to the Motion for Summary Judgment. Plaintiff was aware of the PLRA argument contained in the Motion for Summary Judgment from the outset and nothing precluded her from informing the Court, in any one of her previously filed motions for extension of time, of her intent to challenge the constitutionality of the PLRA. Defendants further explained to the Court the interlocking nature of the PLRA argument and Defendants' entitlement to qualified immunity and that any adverse ruling by this Court pertaining to qualified immunity would result in an interlocutory appeal. Through no fault of Defendants, a ruling on Plaintiff's Motion to Recognize the Constitutional and Human Rights of Prison Inmates was not issued for over three years. Any prior delay resulted from documented conduct by others than Defendants in these proceedings. As such, Plaintiff presents absolutely no evidence that Defendants were dilatory in these proceedings. WHEREFORE, for all of the foregoing reasons, Defendants respectfully request this Court deny Plaintiff's Motion to Certify Defendants' Appeal as Frivolous and/or Dilatory, and

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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' RESPONSE TO PLAINTIFF'S MOTION TO CERTIFY DEFENDANTS' APPEAL AS FRIVOLOUS AND/OR DILATORY 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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