United States District Court, D. Kansas
CHRIS MCHENRY, Administrator of the Estate of Joseph Jennings, Deceased, Plaintiff,
CITY OF OTTAWA, KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on two motions seeking to
certify questions for interlocutory appeal under 28 U.S.C.
§ 1292(b). Defendants Board of Commissioners for
Franklin County (“the Board”), Franklin County
Sheriff's Deputy Jesse Vega, and former Franklin County
Sheriff's Deputy Ricky Wilson (“Franklin
Defendants”) filed the first one (Doc. 47). Defendants
City of Ottawa, Officers Abe Schmidt, Justin Bulcock, and
Casey Gilmore (“Ottawa Defendants”) filed the
other one (Doc. 53). Plaintiff responded and does not object
(Doc. 65). For reasons explained below, the court grants both
lawsuit arises from Joseph Jennings's death when Ottawa
City Police Officers Abe Schmidt, Justin Bulcock, Casey
Gilmore, and Franklin County Sheriff Deputies Jesse Vega and
Ricky Wilson shot him. Chris McHenry, the administrator of
Mr. Jennings's Estate and his heir, plaintiff, filed suit
against defendants in response. Count IV of the Complaint
alleges the Board and the City of Ottawa violated the
American with Disabilities Act (“ADA”) and the
Rehabilitation Act. Doc. 21 at 18. Specifically, plaintiff
alleges the Board and the City of Ottawa through their
officers and deputies failed to accommodate Mr.
Jennings's disability and incorrectly perceived the
effects of Mr. Jennings's disability as illegal conduct.
Doc. 21 ¶ 87. The Franklin Defendants moved for judgment
on the pleadings against the ADA claim and the Ottawa
Defendants moved to dismiss the ADA claims, arguing that the
ADA does not apply to arrests, Mr. Jennings failed to request
accommodation, the Board did not control the Deputies, and
Mr. Jennings was not a “qualified individual”
under the act.
September 26, 2017 Memorandum and Order, the court held that
these arguments did not warrant dismissal under Federal Rules
of Civil Procedure 12(b)(6) and 12(c). Doc. 46 at 23-25. The
court predicted the Tenth Circuit would apply the ADA to
arrests and that the allegations, as pleaded in the
Complaint, could support findings that Mr. Jennings did not
need to request an accommodation, the Board controlled the
Deputies, and Mr. Jennings was a qualified individual.
Id. Defendants now ask the court to certify this
issue for appeal. Docs. 47, 53.
matter of right, defendants have appealed the court's
holding that the individual defendants who fired their
service weapons are not entitled to qualified immunity based
on the pleadings alone (Docs. 49, 55). Plaintiff has
responded with a motion for judgment asking the court to
enter final judgment in favor of the officers at the scene
who did not fire their service weapons so that he can appeal
the court's decision dismissing the non-shooting officers
(Doc. 64). The Tenth Circuit has abated all appeals until the
court decides this certification motion and has ordered the
parties to notify the Circuit when the court does so. Doc.
61. The Circuit also requested the parties provide within 30
days, a status report advising of the status of the
certification motion. Id.
the courts of appeals only have jurisdiction to hear appeals
from a district court's final decision. 28 U.S.C §
1291. But, 28 U.S.C. § 1292 authorizes those courts to
hear certain interlocutory appeals. One permissible category
of interlocutory appeal consists of decisions certified by a
district judge. A district judge may certify an interlocutory
order when the judge is of the opinion that (1) the district
court's order involves a controlling question of law; (2)
a substantial ground for difference of opinion exists with
respect to the question of law; and (3) an immediate appeal
from the order may advance the ultimate termination of the
litigation materially. Id. § 1292(b). The court
retains discretion to certify an interlocutory order for
appeal under § 1292(b). Id. Such certification
is “limited to extraordinary cases in which extended
and expensive proceedings probably can be avoided by
immediate and final decision[s] of controlling questions
encountered early in the action.” Utah by &
through Utah State Dep't of Health v. Kennecott
Corp., 14 F.3d 1489, 1495 (10th Cir. 1994). District
courts have discretion to determine whether to stay
proceedings pending disposition of an interlocutory appeal.
28 U.S.C. § 1292(b).
Controlling Question of Law
argue that the court should certify for appeal this question:
“Whether the Board can be held responsible for
violating Title II of the ADA based upon the on-the-scene
conduct of Deputies Vega and Wilson during their August 23,
2014 encounter with Joseph Jennings.” Doc. 48 at 11.
The Franklin Defendants also argue that this question be
divided into subparts. The court declines to certify the
suggested sub-parts but does conclude it is appropriate to
certify an issue using slightly different phrasing: Whether
plaintiff has pleaded a violation of Title II of the ADA
against the Board and the City of Ottawa. This issue presents
a controlling question of law because the answer to this
question will determine if plaintiff's ADA claim ends
here or will move forward for discovery. This question also
limits the court of appeal's inquiry to a legal one.
Substantial Ground for Difference of Opinion
court to find a substantial ground for difference of opinion,
the court must see a difficult, novel question that is guided
by little precedent. Farmer v. Kan. State Univ., No.
16-CV-2256-JAR-GEB, 2017 WL 3674964, at *3 (D. Kan. Aug. 24,
2017). This standard requires the certification's movant
to present a colorable argument to support its position.
Rural Water Dist. No. 4 v. City of Eudora, Kan., 875
F.Supp.2d 1260, 1274 (D. Kan. 2012), rev'd in part on
others grounds720 F.3d 1269 (10th Cir. 2013). That an
issue presents a question of first ...