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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number: 00-cv-02555-JLK-BNB PAMELA CLIFTON, Plaintiff, v. NURSE IONA EUBANK, in her individual capacity; OFFICER ANAYA, in her individual capacity; OFFICER WILKS, in her individual capacity, Defendants. PLAINTIFF'S MOTION TO CERTIFY DEFENDANTS' APPEAL AS FRIVOLOUS AND/OR DILATORY Plaintiff, Pamela Clifton, by and through counsel, David A. Lane, Mari Newman, and Marcel Krzystek of KILLMER, LANE & NEWMAN, LLP, hereby moves this Court to certify Defendants' appeal as frivolous and/or dilatory, and in support thereof states 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]. 2. In Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806

(1985), the Supreme Court held that the denial of a defendant's motion for summary judgment based on qualified immunity was a collateral order subject to immediate appeal. As a general principle, "[t]he 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

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of the case involved in the appeal." Stewart v. Donges, 915 F.2d 572, 574 (10th Cir. 1990), citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982). 3. "Unlike an appeal from a final judgment, an interlocutory appeal disrupts ongoing

proceedings in the district court." Stewart v. Donges, 915 F.2d at 575. Although some interlocutory appeals taken pursuant to 28 U.S.C. § 1292(b) may be isolated from the remainder of the case, an appeal based upon a denial of a motion for summary judgment based upon qualified immunity cannot because, if the defense is applicable, "it divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant." Id. at 576. 4. Because of the power of such interlocutory appeals to divest the district court of

jurisdiction and derail ongoing district court proceedings, "there is the risk that such interlocutory appeals will be subject to abuse." Stewart v. Donges, 915 F.2d at 576. [T]he divestiture of jurisdiction rule, applicable generally when a defendant files a notice of appeal, should not leave the trial court powerless to prevent intentional dilatory tactics by enabling a defendant unilaterally to obtain a continuance at any time prior to trial by merely filing a motion, however frivolous, and appealing the trial court's denial thereof. Id., citing United States v. Hines, 689 F.2d 934, 936 ­ 37 (10th Cir. 1982). Defendants may take [Mitchell v.] Forsyth appeals for tactical as well as strategic reasons: disappointed by the denial of a continuance, they may help themselves to postponement by lodging a notice of appeal. Proceedings masquerading as [Mitchell v.] Forsyth appeals but in fact not presenting genuine claims of immunity create still further problems. Id. at 577, citing Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989). Fortunately, a mechanism exist to prevent such abuses.

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Courts are not helpless in the face of manipulation. District judges lose power to proceed with trial because the defendants' entitlement to block trial is the focus of the appeal. If the claim of immunity is a sham, however, the notice of appeal does not transfer jurisdiction to the court of appeals, and so does not stop the district court in its tracks. Id. at 577, citing Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989). The Supreme Court itself has endorsed a district court's power to certify a defendant's interlocutory appeal of the denial of qualified immunity as frivolous or forfeited as a means of protecting civil rights plaintiffs from abusive successive pre-trial assertions of qualified immunity. See Behrens v. Pelletier, 133 L. Ed. 2d 773, 116 S. Ct. 834, 840-41 (1996). 5. If a district court makes a finding that a defendant's appeal is frivolous or

forfeited, the divestiture of jurisdiction1 does not occur and jurisdiction in the district court is retained. Stewart v. Donges, 915 F.2d at 577 ("Hines and Apostol both recognized that it is the district court's certification of the defendant's appeal as frivolous or forfeited rather than merely the fact that the appeal is frivolous which allows the district court to retain jurisdiction to conduct a trial. Other courts have similarly emphasized the need for a clear and reasoned finding of frivolousness or forfeiture by the district court in order to prevent the automatic divestiture of jurisdiction.") (emphasis in original) "[W]e recognized in Stewart a procedure by which a district court may maintain jurisdiction over a defendant if the court certifies that the defendant's appeal is frivolous." Langley v. Adams County, 987 F.2d 1473, 1476 (10th Cir. 1993). If such a certification is made, jurisdiction exists in both the district court and the court of appeals. See id. 6. While this Court has already concluded that Defendants' conduct, if proven,

violated Plaintiff's clearly established constitutional rights, such a finding is not the same as
The jurisdiction at issue is not constitutional or statutory, "but rather `a judge-made doctrine, designed to promote judicial economy and avoid . . . confusion and efficiency.'" McCauley v. Halliburton Energy Servs., 413 F.3d 1158, 1162, n.1 (10th Cir. 2005).
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concluding that Defendants' appeal is frivolous or dilatory. "A frivolousness standard is not only a more difficult standard to meet than a `clearly established' standard, it must be kept in mind that the `clearly established' standard is applied to the state of the law while the `frivolousness' standard asks not what the law was, but whether it could even be argued that the law was not clearly established." Stewart v. Donges, 915 F.2d at 583, n.14. 7. A frivolous qualified immunity claim is one that is unfounded, "so baseless that it

does not invoke appellate jurisdiction" and that a forfeited qualified immunity claim is one that is untimely or dilatory. Apostol v. Gallion, 870 F. 2d at 1339. See also Wilcox v. Comm'r of Internal Revenue, 848 F.2d 1007, 1009 (9th Cir. 1988) ("An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit.") A qualified immunity claim may be certified as frivolous if the claim is "`so baseless that it does not invoke appellate jurisdiction[.]'" Marks v. Clarke, 102 F.3d 1012 at 1017-18, n.8, quoting Apostol v. Gallion, 870 F.2d at 1339. Stated differently, an appeal from an order denying qualified immunity on summary judgment is frivolous where the order "is so plainly correct that nothing can be said on the other side." Apostol, 870 F.2d at 1339; see also Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) (stating that an issue is frivolous on appeal if it has "no arguable basis in fact or law"); Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (stating that a district court may issue a certificate of appealability only if there has been a showing that "reasonable jurists" would find the district court's ruling "debatable or wrong"). 8. In a recent decision, the United States District Court for the District of Arizona

certified a defendant's appeal on qualified immunity grounds as frivolous. See Wilson v. Maricopa County, 2006 U.S. Dist. LEXIS 92008 (D. Ariz., Dec. 13, 2006) (attached hereto as

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Exhibit 1). There, defendant, the sheriff Joe Arpaio of Maricopa County, sought an appeal from an order denying him summary judgment after an inmate-on-inmate assault. The court, applying the standards set forth in paragraph 7 above, concluded "that Sheriff Arpaio's interlocutory appeal is frivolous. The right at issue was clearly established at the time of [plaintiff's] assault, and the evidence, construed in Plaintiffs' favor, shows that no reasonable sheriff in Defendant Arpaio's position could have believed that his conduct was lawful. This matter must proceed to trial. Sheriff Arpaio's qualified immunity appeal has no reasonable basis in fact or law." Importantly, the "right at issue" was a jail inmate's right, under the Eighth Amendment, "to be free from a jail official's deliberate indifference to inmate-on-inmate assaults." 9. Here, as in Wilson, the law was clearly established at the time the constitutional

violations occurred, and no reasonable person in Defendants' position could have believed that his or her conduct was lawful. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. Amend. XIII. "The Eighth Amendment's ban on inflicting cruel and unusual punishments, made applicable to the States by the Fourteenth Amendment, `[proscribes] more than physically barbarous punishments.' . . . It prohibits penalties that are grossly disproportionate to the offense, . . . as well as those that transgress today's `broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (internal citations omitted). The United States Supreme Court's seminal decision in Estelle v. Gamble, 429 U.S. 97 (1976), sets forth as governing rule of law the "deliberate indifference" standard for civil rights claims involving medical needs and treatment of prisoners. Following the reasoning of such cases as Trop v. Dulles, 356 U.S. 86 (1958), and Gregg v. Georgia, 428 U.S. 153 (1976), the Court held as repugnant punishments incompatible with the "evolving standards of decency that mark the

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progress of a maturing society" or that involve the "unnecessary and wanton infliction of pain." Estelle, supra at 102-103. The case went on to cite as deliberate indifference: (a) denial of medical care; (b) interference with treatment already prescribed; or (c) delaying care (a lack of response to a prisoner's medical needs). Estelle, 429 U.S. at 104-105. 10. The Court's decision in Deshaney v. Winnebago Dept. of Social Services, 489

U.S. 189, 199-200 (1989), as cited in Helling v. McKinney, 509 U.S. 25, 30-31 (1993), has perhaps most succinctly set forth the purpose behind such reasoning: When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs ­ e.g., food, clothing, shelter, medical care, and reasonable safety ­ it transgresses the substantive limits on state action set by the Eighth Amendment. . . . More recent cases have detailed this standard as having both objective and subjective elements. First, there must exist a serious medical need known to the prison official; second, the official must disregard that risk by failing to take reasonable measures to abate it (must be "deliberately" indifferent to it). Farmer v. Brennan, 511 U.S. 825, 832-852 (1994). It is against this background that Defendants' claims of qualified immunity must be considered, and as set forth below, the case at hand clearly meets this standard. 11. "A medical need is sufficiently serious if it is one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Martinez v. Garden, 430 F.3d 1302 (10th Cir. 2005), citing Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Deliberate indifference

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to a prisoner's serious medical needs violates the Eighth Amendment when a prison official denies, delays, or intentionally interferes with prescribed medical treatment. Jackson v. MacIntosh, 90 F.3d. 330 (9th Cir. 1996), cert. denied, 519 U.S. 1029. Such includes both acts and omissions, including a lack of response/delay in responding to a detainee's medical needs. Haitian Centers Council, Inc. v. Sale, 823 F. Supp 1028 (E.D.N.Y. 1993). A delay in providing medical care or treatment constitutes an Eighth Amendment violation if it results in substantial harm. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). Further, an official's failure to consider an inmate's complaints may satisfy this requirement, Lewis v. Angelone, 926 F. Supp. 69 (W.D. Va. 1996), as does a guard's intentional delay in providing access to medical treatment. Estate of Frank v. City of Beaver Dam, 921 F. Supp. 590 (E.D. Wis. 1996). 12. Federal courts have consistently held that a delay in medical care to a pregnant

inmate meets the legal standard established by Estelle v. Gamble. See, e.g., Archer v. Dutcher, 733 F.2d 14, 16 (2nd Cir. 1984) (holding that a pregnant inmate who miscarried stated a cognizable claim where she alleged that defendants intentionally delayed emergency medical aid); Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997); see also Boswell v. County of Sherburne, 849 F.2d 1117 (8th Cir. 1988) (pregnant pretrial detainee stated cognizable claim under § 1983 from which defendants were not entitled to qualified immunity where medical treatment was delayed); Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981) (upholding a § 1983 damage award based, in part, on delay of medical treatment to a pregnant woman by arresting officer, which resulted in the stillbirth of her child), disapproved on other grounds, Canton v. Harris, 489 U.S. 378 (1989); Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986).

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13.

It is difficult to imagine a more obvious serious medical need than an observably

pregnant woman stating that she is in labor. If, for some reason, that did not provide sufficient notice to the Defendants that Ms. Clifton was in serious need of medical attention, Ms. Clifton specifically told Defendants Anaya, Wilks and Eubank that she was in labor and in need of immediate medical care. As this Court found in its Memorandum Opinion and Order [92], "any lay person would recognize the obvious need a woman in labor has for a doctor's attention." 14. Consequently, this Court's Memorandum Opinion and Order "is so plainly

correct that nothing can be said on the other side." Apostol, 870 F.2d at 1339. Defendants' appeal is without merit, frivolous, and invoked for purpose of delay. As it is unfounded and baseless, and because it cannot even be argued that the law was not clearly established, Stewart v. Donges, 915 F.2d at 583, n.14, Defendants' appeal does not invoke appellate jurisdiction. Plaintiff therefore requests that the Court certify Defendants' appeal as frivolous and/or dilatory, retain jurisdiction over the case, and continue with further proceedings. 15. Pursuant to Local Rule 7.1A, undersigned counsel hereby certifies that on January

24, 2007, he conferred with Edmund Kennedy, Esq., counsel for Defendants. Defendants oppose the relief requested in this motion. WHEREFORE, Plaintiff respectfully requests that the Court certify Defendants' appeal as frivolous and/or dilatory, retain jurisdiction over the case, and continue with further proceedings. Respectfully submitted this 24th day of January, 2007. KILLMER, LANE & NEWMAN, LLP s/ Marcel Krzystek ____________________________ David A. Lane

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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 24th, 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]

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 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 s/ Marcel Krzystek ________________________________

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