United States District Court, W.D. Washington, at Tacoma
ORDER ON MOTION FOR INTERLOCUTORY APPEAL [DKT #42]
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Kitsap County's Objection [Dkt. #42] to the Magistrate Judge's Order [Dkt. #41] Denying its Motion [Dkt. #35] for a Stay and for Certification to the Ninth Circuit. The Motion is in form and substance a Motion for Interlocutory Appeal under 28 U.S.C. §1292(b).
Plaintiff Boston was arrested and jailed on January 3, 2011. He claims that while he was incarcerated, Kitsap County and its medical contractor, Conmed, denied him access to lawfully-prescribed opiates, and caused (or left untreated) various other medical conditions. He also alleges that as a result of Kitsap County's negligence, he fell down a flight of stairs and was injured on January 13, 2011.
On January 3, 2014, Boston served a pre-claim notice for his state law tort claim against Kitsap County. On March 10, 2014, he sued Kitsap County for state law negligence related to the fall, and he sued the county and Conmed under 42 U.S.C. §1983 for what he claims were constitutional deficiencies in his medical care. Kitsap County and Conmed moved to dismiss [Dkt. #11], arguing that Boston's §1983 claims were untimely. They argued that while Boston's pre-claim notice (a prerequisite for commencing a state law tort litigation under RCW 4.96.020) tolled (or, more accurately, extended) the limitations period for his state law negligence claim against Kitsap County, it did not also extend the (RCW 4.16.080) limitations period applicable to his §1983 claims.
Magistrate Judge Creatura Recommended denial of the Motion to Dismiss [Dkt. #25] and this Court adopted that Report and Recommendation [Dkt. #34]. Kitsap County and Conmed moved for a Stay and for Certification of the issue to the Ninth Circuit [Dkt. #35]. Magistrate Judge Creatura denied that Motion [Dkt. #41], and the issue is now before this Court on Defendants' Fed.R.Civ.P. 72 Objection to that Order [Dkt. #42].
Defendants claim essentially that RCW 4.96.020(4) is not a tolling provision; it is a "special limitations period" related (only to) state law tort claims, and that it does not purport to, and should, not apply to claims under 42 U.S.C. §1983. It claims that the statute's applicability is (a) a controlling question of law as to the bulk of Plaintiff's claims (and all of his claims against Conmed); (b) that there is ground for difference of opinion on the issue; (c) that it is likely to succeed on the merits of its position that RCW 4.96.020(4) does not apply to a §1983 claim, even when the plaintiff does file a state law pre-claim notice; and (d) that early resolution of this issue would materially advance the ultimate termination of the litigation. These arguments are the factors that this court considers in evaluating a request for an interlocutory appeal under 28 U.S.C. §1292(b).
A. Resolution of the tolling provision's application would materially advance the ultimate termination of this litigation.
Defendants argue that the bulk of the case would be resolved immediately if their position on the applicability of RCW4.96.020(4) is correct-all of Boston's claims against Conmed, and all of his "non-accident" claims against Kitsap County, are brought under §1983. They point out, correctly, that §1292(b) does not require that the issue on interlocutory appeal have a "final, dispositive effect" on the entire litigation. A party must instead demonstrate only that the issue could "materially advance" the litigation's termination.
It is clear that this element of the §1292(b) evaluation favors an interlocutory appeal.
B. RCW 4.96.020(4)'s application is a controlling question of law.
Boston does not dispute that the application of RCW 4.96.020(4) to §1983 claims presents a controlling question of law-it will resolve the viability of Boston's §1983 claims against Kitsap County and Conmed. This element of the §1292(b) evaluation favors an interlocutory appeal.
C. There is ground for difference of opinion on the issue, and there is actually a difference of opinion on the issue.
The Defendants emphasize that, while there is a series of Western District opinions holding or suggesting that RCW 4.96.020(4) applies to §1983 claims (at least where the Plaintiff does in fact file a tort claim notice for related state law claims), there is ample ground for a difference of opinion on the issue. They argue that the question is not whether the Magistrate Judge (or this Court) agrees with one line of cases or the other, it is whether there is in fact a difference of opinion on the issue. They argue that the Magistrate Judge's Order denying their Motion relied on its agreement with one set of precedents, while the issue is instead whether there is another reasonable view.
Boston's Response does not address this point; it just repeats his claim that the better-reasoned cases apply RCW 4.96.020(4)'s tolling provision, to §1983 claims, even though the rest of the pre-claim notice statute does not and cannot apply to §1983 claims as a matter of law. This argument goes to the final factor, whether the ...