Robertson v. Kitsap County et al

Filing 90

ORDER denying 86 Defendants Johnson's and Steven's Motion to Certify; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TIMOTHY ROBERTSON,

CASE NO. C15-5422-RBL

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Plaintiff,
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v.

ORDER DENYING DEFENDANTS’
MOTION TO CERTIFY AND TO
STAY

KITSAP COUNTY, et al.
DKT. #86

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Defendants.

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THIS MATTER is before the Court on Defendants Johnson’s and Steven’s Motion for

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Certification of Issues to the Ninth Circuit and for a Stay of Proceedings [Dkt. #86]. Plaintiff

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Robertson alleges that after he broke a tooth at the Kitsap County Jail, Johnson and Stevens were

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deliberately indifferent to his dental needs by inadequately treating him and by delaying referring

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him to a dentist for two months. The Court denied Johnson’s and Steven’s motion for summary

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judgment, concluding the record, taken in the light most favorable to Robertson, presented

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genuine disputes of material facts. The Court also denied their motion for reconsideration.

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Defendants now ask the Court to certify two questions to the Ninth Circuit: (1) whether a

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plaintiff claiming deliberate indifference to his medical needs is required to present competent

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medical evidence from a medical practitioner showing his serious medical need and that a delay

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ORDER DENYING DEFENDANTS’ MOTION TO
CERTIFY AND TO STAY - 1

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or denial of treatment was a proximate cause of his tangible residual injury, and (2) whether a

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plaintiff claiming deliberate indifference to his medical needs is required to present competent

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medical evidence from a medical practitioner that the defendant fell below the standard of care.

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They argue if the Ninth Circuit answers these questions in the affirmative, Robertson’s claims

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against them must be dismissed. They ask the Court to stay the case in the interim. Robertson

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argues the Court should deny Defendants’ request because only questions of fact remain.

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A district court may certify a non-final order for interlocutory appeal where it “involves a

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controlling question of law as to which there is substantial ground for difference of opinion” and

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where “an immediate appeal from the order may materially advance the ultimate termination of

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the litigation.” 28 U.S.C. § 1292(b).
The Defendants attempt to convert a question about the sufficiency of the evidence into a

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question of controlling law. Their proposed questions show they take issue with the Court’s

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conclusion that Robertson offered sufficient evidence from which a reasonable fact finder could

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return a decision in his favor.

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“Evidence insufficiency” claims are not immediately appealable. See Johnson v. Jones,

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515 U.S. 304, 313, 115 S. Ct. 2151, 2156, 132 L. Ed. 2d 238 (1995). In Johnson v. Jones, the

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Supreme Court considered whether three defendant police officers were entitled to an

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interlocutory appeal on their argument that insufficient evidence supported the district court’s

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conclusion that there were material issues of fact surrounding whether they had participated in

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allegedly beating the plaintiff. See id. at 307 (asking for an appeal on immunity grounds under

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Mitchell v. Forsyth, 472 U.S. 511, 524–29, 105 S.Ct. 2806, 2814–17, 86 L.Ed.2d 411 (1985)).

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The Court held “that a defendant … may not appeal a district court’s summary judgment order

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DKT. #86 - 2

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insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of

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fact for trial.” Id. at 319–20.

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The same holds true here. The Defendants may not escape trial by contorting their

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displeasure with the Court’s view of the evidence into an apparent question of law. Because the

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Defendants have not presented a controlling issue of law appropriate for certification, their

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Motion for Certification and for a Stay [Dkt. #86] is DENIED.

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IT IS SO ORDERED.

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Dated this 26th day of June, 2017.

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A

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Ronald B. Leighton
United States District Judge

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DKT. #86 - 3