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 Case Number 00-cv-02555-JLK-BNB PAMELA CLIFTON, Plaintiff, vs. NURSE IONA EUBANK, in her individual capacity; OFFICER ANAYA, in her individual capacity; OFFICER WILKS, in her individual capacity, Defendants. PLAINTIFF'S RESPONSE TO DEFENDANTS' RENEWED MOTION FOR CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) OF THIS COURT'S MARCH 8, 2006, ORDER Plaintiff, Pamela Clifton, by and through counsel, David A. Lane, Mari Newman, and Marcel Krzystek of KILLMER, LANE & NEWMAN, LLP, files this Response to Defendants' Renewed Motion for Certification Pursuant to 28 U.S.C. § 1292(b) of this Court's March 8, 2006, Order [95] as follows: 1. On January 15, 2007, Defendants filed their Notice of Appeal [93]. On that same

date, Defendants also filed their Motion to Stay Pending Appeal on Qualified Immunity [94], and Defendants' Renewed Motion for Certification Pursuant to 28 U.S.C. § 1292(b) of this Court's March 8, 2006 Order [95]. As its name suggests, Defendants' Renewed Motion for Certification primarily relies on a restatement of the same arguments that they asserted in their Motion for Certification Pursuant to 28 U.S.C. § 1292(b) of this Court's March 8, 2006 Order [72].

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2.

This Court has already analyzed and denied Defendants' first motion seeking

certification on the PLRA issue. Order [79]. There is no reason that this Court should now reach a contrary conclusion. 3. Defendants' renewed effort to seek certification from this Court in order to take

an interlocutory appeal advances one argument not previously raised, that is, because the issue of qualified immunity is before the Tenth Circuit, it would make "imminent sense to have the Tenth Circuit review the PLRA's physical injury issue along with the issue of qualified immunity." Defendants' Renewed Motion for Certification Pursuant to 28 U.S.C. § 1292(b) of this Court's March 8, 2006 Order [95], p. 4. As set forth more fully below, Defendants' argument does not satisfy the onerous legal standard for certification. 4. Accordingly, Plaintiff again opposes Defendants' efforts to certify this issue.

First, certification should again be denied as the question presented by Defendants is a factual question, not a legal question and only questions of law can be certified. Second, Plaintiff has opposed Defendants' efforts to divest this Court of jurisdiction pending appellate review, as is briefed in Plaintiff's Motion to Certify Defendants' Appeal as Frivolous and/or Dilatory [102]. Finally, certifying the PLRA issue would constitute an impermissible expansion of appellate rights and require Tenth Circuit briefing on separate legal issues from those involving strictly qualified immunity, and, as a result, would complicate and induce further delay in this case. I. 5. LEGAL STANDARD OF REVIEW

Generally, interlocutory orders of district courts are not permitted appellate

review prior to the entry of final judgment. Cotner v. Mason, 657 F.2d 1390, 1391 (10th Cir. 1981). Appeals from interlocutory orders may be permitted if the district judge is "of the opinion that such order involves a controlling question of law as to which there is substantial

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ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting 28 U.S.C § 1292(b)). Certification procedure is not mandatory, and permission to appeal is wholly within discretion of courts, even if criteria specified by statute are present. Bachowski v. Usery, 545 F.2d 363, 368 (3rd Cir. 1976). The party seeking certification has the burden of showing that exceptional circumstances justify departure from the basic policy of postponing appellate review until after entry of final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). 6. All three criteria set out in section 28 U.S.C. §1292(b) must be met before it is

proper for a district judge to certify an order for review. The order must involve: (1) a controlling question of law; (2) a substantial ground for difference of opinion with respect to that question of law; and (3) an immediate appeal would materially advance the ultimate termination of the litigation. In re Wyoming Tight Sands Antitrust Cases, 715 F. Supp. 307, 308 (D. Kan. 1989). Use of this certification procedure should be strictly limited because "only `exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2nd Cir. 1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)); see Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2nd Cir. 1992) (district courts must use "great care" in making a § 1292(b) certification). Indeed, there is a distinct federal policy against piecemeal appeals in the interest that the floodgate not be opened bringing into the exception many pretrial orders. Switzerland Cheese Ass'n v. E. Horn's Market, Inc., 385 U.S. 23, 25 (1966).

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II. 7.

ARGUMENT

This court's Memorandum Opinion and Order of March 8, 2006 should not be

certified to the Tenth Circut for interlocutory review. First, the requirement that there be a controlling question of law has not been satisfied. Ms. Clifton's prolonged labor that resulted in the death of her child is undoubtedly an injury, and, to the extent there is a question about that fact, it is rightly left to the jury to decide. Secondly, Defendants have provided no evidence that there are substantial grounds for differing opinions as to this Court's order. On the contrary, this Court, in its Memorandum Opinion and Order, clearly showed support of its finding with analogous case law and well reasoned legal theory. The Court's Order is further supported by the arguments advanced in Plaintiff's Motion to Certify Defendants' Appeal as Frivolous and/or Dilatory [102], which Plaintiff hereby incorporates by reference. 8. This case does not present an exceptional circumstance to justify certification of

an interlocutory appeal. The appellant has the burden to prove that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. Coopers & Lybrand, 437 U.S. at 475. Courts have been very clear that this section be applied sparingly and with caution, and Defendants have not carried their burden. "Enlargement of the right to appeal should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action." State of Utah v. Dennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994); see Barrett v. Burt, 250 F. Supp. 904, 906 (S.D. Ia. 1966) (section 1292(b) must be sparingly applied and is only to be used in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation). The legislative history indicates that an appeal from an interlocutory order should not be used to decide the mere question of the

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correctness of a ruling. Haraburda v. United States Steel Corp., 187 F. Supp. 86, 89 (W.D. MI 1960). In this case, Defendants seek to have an order certified to the appellate court with no hope that a decision by the court of appeals will avoid protracted and costly litigation when all discovery has been concluded and the case is ready to proceed to trial. a. Whether Ms. Clifton's prolonged labor resulting in the stillbirth of her child is an injury is a question of fact reserved for the jury. 9. The statute's first requirement is that the question of law presented for appeal be

"controlling." An order is not appropriate for certification pursuant to 28 U.S.C. §1292(b) where it is predicated at least in part on specific factual findings and appeal would necessarily present mixed questions of law and fact rather than controlling issue of pure law. Steering Comm. v. United States, 6 F.3d 572, 574 (9th Cir. 1993); SEC v. First Jersey Secur., Inc., 587 F. Supp. 535, 536 (S.D.N.Y. 1984). A question, such as the one presented by Defendants, which may require a factual as well as a legal decision is not suitable for interlocutory review. Johnson v. Alldredge, 488 F.2d 820, 822 (3rd Cir. 1973), cert. denied sub nom. Cronrath v. Johnson, 419 U.S. 882, 95 S. Ct. 148, 42 L. Ed. 2d 122 (1974). This Court addressed the similarities between Ms. Clifton's case and that of Pool v. Sebastian County, 418 F.3d 934 (8th Cir. 2005), in which the Eighth Circuit determined that "whether a miscarriage constituted physical injury was not an `abstract issue of law,' but was a material question of fact concerning damages or causation reserved for the fact-finder." See Memorandum Opinion and Order [68] p.12. Similarly, Ms. Clifton was forced to endure a full two days of agonizing labor with no medical assistance and the resulting stillbirth. The question as to whether that constitutes an "injury" is one for the factfinder. 10. Defendants argue that the determination in the March 8, 2006 Memorandum

Opinion and Order is "controlling" because without the physical injury requirement they are

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immune from suit in this action. Defendants' Motion for Certification Pursuant to 28 U.S.C § 1292(b) Of This Court's March 8, 2006, Order [72], p. 5. A question of law is not "controlling" as required for interlocutory appeal merely because it is determinative of the case at hand; rather, "a question is controlling only if it may contribute to the determination, at an early stage, of a wide spectrum of cases." Federal Deposit Ins. Corp. v First Nat'Bank, 604 F. Supp. 616, 620 l (E.D. Wis. 1985). The issue at hand is fact specific and does not lend itself to the determination of a "wide spectrum of cases" involving whether a set of circumstances meets the requirements of a physical injury under the Prisoner Litigation Reform Act ("PLRA"). This case addresses whether Ms. Clifton's constitutional rights were violated when she was forced to undergo two days of agonizing labor and the stillbirth of her child because of the complete disregard by prison officials of her obvious and serious medical needs. Moreover, certification by the District Court of an interlocutory order is "not intended merely to provide review of difficult rulings in hard cases." Ex rel. Hollander, 420 F. Supp. 853, 859 (D.C. Dist. Col. 1976) (quoting, United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)). b. There is not a substantial ground for differing opinions as to the question of Ms. Clifton's physical injuries 11. The next statutory requirement is that substantial grounds for difference of

opinion exist as to the legal question to be certified. The fact that there are no cases interpreting a particular set of facts involved in a case does not necessarily create substantial grounds for a difference of opinion on what the law requires. Federal Deposit Ins. Corp. v. First Nat'l Bank, 604 F. Supp. 616, 620 (E.D. Wis. 1985); United States ex rel. Hollander v. Clay, 420 F. Supp. 853, 859 (D.C. Dist. Col. 1976). Although there may be no court decisions addressing the exact question of whether the pain of prolonged labor and an attendant stillbirth constitute physical injury, numerous courts have ruled on what is sufficient to meet the prior physical injury

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requirement of the PLRA, as pointed out by this Court in its Memorandum Opinion and Order [68] p. 6. The test applied in numerous courts of appeal is that physical injury must be more than de minimus but need not be significant to satisfy the statutory requirement. Id. There are no substantial grounds for difference of opinions as to the legal requirement -- the question is whether this specific set of circumstances satisfies the test. This Court ruled, and Plaintiff agrees, that it is best left to the factfinder for a determination. Again, this Court's holding and reasoning are supported by the arguments advanced in Plaintiff's Motion to Certify Defendants' Appeal as Frivolous and/or Dilatory [102]. 12. Additionally, Defendants cite no cases to support their position that there is a

substantial ground for differing opinions as to this Court's conclusion that prolonged labor followed by the death of the fetus is sufficient to meet the prior physical injury requirement of the PLRA. "The mere fact that a specific issue has not been previously ruled on, or that the question presented is one of first impression, is not in itself sufficient to establish a substantial ground for difference of opinion." Adams v. Burlington N. R.R., 843 F. Supp. 686, 688 (D. Kan. 1994). c. Certification of the PLRA issue would impermissibly expand the scope of appellate rights 12. The final prerequisite required for the district court to exercise its discretion and

certify an order for interlocutory appeal is that an immediate appeal would materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Interlocutory orders should be used only in exceptional cases where a decision of the appeal may avoid protracted and expensive litigation. Kraus v. Bd. Of County Comm'rs, 364 F.2d 919, 921 (6th Cir. 1966). That end would not be served by certifying the PLRA issue for interlocutory appeal.

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13.

In this case, the Court has denied both 1) Defendants' Motions for Summary

Judgment and 2) Defendants' prior motion seeking certification of the PLRA issue. Defendants cannot piggy-back other issues into an appeal simply because they may be permitted to seek interlocutory appeal on a limited issue, i.e., qualified immunity.1 The issues related to PLRA are not identical to those that may require briefing on the Defendants' assertion of qualified immunity, as determining whether or not Ms. Clifton suffered a physical injury is not the same as determining whether or not the three individual Defendants violated Ms. Clifton's clearly established constitutional rights. Certification of the PLRA issue would constitute the "enlargement of the right to appeal" prohibited by the Tenth Circuit. State of Utah v. Dennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994). 14. This limitation on the right to appeal makes particular sense in this case, which

addresses Ms. Clifton's claim that the 1998 stillbirth of her child was caused by Defendants' deliberate indifference to her obvious and serious medical needs. A full eight years have passed since the events giving rise to this litigation. All discovery has been conducted. Dispositive motions have been denied. The case is poised for trial. The additional delay that would accompany an expanded appeal would further prejudice Ms. Clifton. 15. Taking Defendants' argument to its extreme, there would be no reason why

Defendants could not seek interlocutory review of the myriad other issues in this case simply because the one issue upon which they may be entitled to seek review is before the Tenth Circuit. To the extent that Defendants disagree with any legal ruling, they have a perfectly adequate remedy, i.e., appeal after a jury trial. All legal issues, including the PLRA's physical injury requirement and Defendants' entitlement to qualified immunity, can be addressed at that time.
As discussed in Plaintiff's Motion to Certify Appeal as Frivolous [102] (incorporated herein by reference), it is Plaintiff's position that Defendants' effort to appeal this Court's denial of qualified immunity is frivolous, and this Court should retain jurisdiction over this case and continue with further proceedings.
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Interlocutory appeal at this moment on the PLRA issue is not in conformity with the letter or spirit of 28 U.S.C. § 1292(b). V. CONCLUSION For the above and foregoing reasons, Plaintiff requests that Defendants' Renewed Motion for Certification Pursuant to 28 U.S.C. § 1292(b) Of This Court's March 8, 2006, Order [95] be denied. Respectfully submitted this 31st day of January 2007. KILLMER, LANE & NEWMAN, LLP s/ Marcel Krzystek _______________________________________ David A. Lane Mari Newman Marcel Krzystek The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on January 31, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
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Thomas J. Lyons [email protected] [email protected];[email protected] Edmund Martin Kennedy [email protected],[email protected],[email protected]

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and I hereby certify that I have mailed or served the document or paper to the following participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Vincent M. Garvey

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U.S. Department of Justice Civil Division, Federal Programs Branch 901 E Street, N.W., #946 Washington, DC 20530 Pamela Clifton 1550 S York St. Denver, CO 80210-2817 KILLMER, LANE & NEWMAN, LLP s/ Marcel Krzystek _______________________________________ Marcel Krzystek The Odd Fellows Hall 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000

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