Angelo v. Board of County Commissioners of Jefferson County, Colorado, The et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:23-cv-01607-CNS-STV
The ESTATE OF ABBY ANGELO;
KRISTIE ANGELO, as Personal Representative of the Estate of Abby Angelo; and
K.L., a minor, by and through his grandmother, Kristie Angelo,
Plaintiffs,
v.
THE BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, a
governmental entity;
REGGIE MARINELLI, in her official capacity as Jefferson County Sheriff;
WELLPATH, LLC;
CARRIE EARLE, LPN, in her individual capacity;
REBECCA STRONG, LPN, in her individual capacity;
COURTNEY SLOWEY, LPN, in her individual capacity;
NICOLE WOLF, RN, in her individual capacity; and
ESMERALDA ZIEGELMANN, RN, in her individual capacity,
Defendants.
ORDER ON MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL
Before the Court is Defendant’s Motion for Certification of Interlocutory Appeal
pursuant to 28 U.S.C. § 1292(b). ECF No. 169. The Court DENIES the motion for the
following reasons.
I. 	BACKGROUND
On June 19, 2021, the Wheat Ridge Police Department (WRPD) arrested Ms.
Angelo and booked her into the Jefferson County Detention Facility (JCDF), operated by
the Jefferson County Sheriff’s Department. ECF No. 47 (First Amended Complaint) ¶¶
39, 41. From June 20 to June 26, 2021, Ms. Angelo’s health declined. Id. ¶ 53. On June
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28, 2021, Ms. Angelo died in the Jefferson County Jail from tricuspid valve endocarditis
(TVE), a heart infection. Id. ¶ 177.
On June 24, 2024, Plaintiffs filed suit against the Board of County Commissioners
of Jefferson County (the Board) and Sheriff Reggie Marinelli, in her official capacity as
Jefferson County Sheriff. ECF No. 47. Plaintiffs also brought suit against Wellpath, the
private company contracted to provide medical care at the JCDF, and five individual
nurses at the JCDF. Id.
The Jefferson County Defendants filed a motion to dismiss, arguing that Plaintiffs
had not alleged that the Sheriff Marinelli delegated final policymaking authority to
Wellpath and that the nondelegable duty doctrine was an impermissible theory of liability.
ECF No. 54. Wellpath Defendants filed a separate motion to dismiss. ECF No. 62. The
Court denied the Wellpath Defendants’ motion to dismiss and granted in part and denied
in part the Jefferson County Defendants' motion to dismiss. ECF No. 150. Specifically,
the Court dismissed all claims against the Board of County Commissioners and the state
law tort claims against Sheriff Marinelli. Id. The indirect liability claim based on the
nondelegable duty doctrine is the only remaining claim against Sheriff Marinelli. Id.
Defendant filed the instant motion challenging the nondelegable duty doctrine as
a theory of liability and requesting interlocutory appeal of the issue. ECF No. 169.
II. 	STANDARD OF REVIEW
In determining when certification for interlocutory appeal is appropriate, 28 U.S.C
§ 1292(b) provides that,
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is a substantial
ground for difference of opinion and that an immediate appeal of the order
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may materially advance the ultimate termination of the litigation, he shall so
state in writing in such order.
Under this statute, an issue may be certified for interlocutory appeal in a civil action where
the court concludes: (1) the order involves a controlling question of law; (2) there is a
substantial grounds for difference of opinion as to the resolution of that question; and (3)
it appears that an immediate appeal from the order may materially advance the ultimate
termination of the litigation. Dorato v. Smith, 163 F. Supp. 3d 837, 893 (D.N.M. 2015).
Certification of appeal is limited to “extraordinary cases” where “extended and expensive
proceedings” are avoided by immediate decisions on controlling questions. Utah ex. Rel.
Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994). “To
routinely certify orders under § 1292(b) would be contrary to congressional intent.”
Vandiver v. MG Billings Limited, 12-cv-02960-CNS-MDB, 2023 WL 3247286, at *1 (citing
Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996)).
III. 	ANALYSIS
Although the Court’s order involves a controlling question of law, a substantial
ground for difference of opinion does not exist and an appeal would not materially
advance the ultimate termination of the litigation. For these reasons, addressed at length
below, the Court denies Defendant’s motion.
A. 	The Court’s Order Involves a Controlling Question of Law
In determining whether an order involves a controlling question of law, “the critical
requirement is that the question be one having the potential for substantially accelerating
disposition of the litigation. If the correct answer to the question will end the matter
pending, the question is controlling.” In re Grand Jury Proc. June 1991, 767 F. Supp. 222,
225 (D. Colo. July 3, 1991). “A legal issue need not be dispositive to be controlling, but it
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must at least materially affect the outcome of the case.” XTO Energy, Inc. V. ATD, LLC,
189 F. Supp. 3d 1174, 1193–94 (D.N.M. 2016) (citing In Re City of Memphis, 293 F.3d
345, 351 (6th Cir. 2002).
Defendant argues that the order involves a controlling question of law because a
Tenth Circuit ruling on the issue of whether the nondelegable duty doctrine is a viable
theory of liability could resolve all claims against Sheriff Marinelli. ECF No. 169 at 3.
Plaintiffs respond that this is not a controlling question of law because the nondelegable
duty doctrine pertains to only one defendant, Sheriff Marinelli, and therefore resolution of
this contemplated appeal would not end litigation. ECF No. 176 at 3–4.
The issue of whether the nondelegable duty doctrine is a viable theory of liability
is controlling because a Tenth Circuit decision would affect the outcome of this litigation.
Although resolution of the issue would not affect all defendants in this case, the claim
against 	Sheriff 	Marinelli 	could 	be 	resolved 	on 	appeal. 	Therefore, 	whether 	the
nondelegable duty doctrine is a viable theory of liability is a controlling question of law.
B. Substantial Ground for Difference of Opinion Does Not Exist
The Court must next determine whether there is substantial ground for difference
of opinion regarding whether the nondelegable duty doctrine is a viable theory of liability.
A substantial ground for difference of opinion may exist where “the circuits are in dispute
on the question and the court of appeals of the circuit has not spoken on point, if
complicated questions arise under foreign law, or if novel and difficult questions of first
impression are presented.” Couch v. Telescope Inc., 611 F.3d 6298, 633 (9th Cir. 2010).
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1. 	The Tenth Circuit Has Not Spoken and Circuits Are Not in Dispute
The Tenth Circuit has not formally ruled on whether the nondelegable duty theory
of liability is permissible. See Estate of Newman v. Bd. Of Cnty. Comm’rs of Montezuma,
No. 22-cv-01763-PAB-KAS, 2023 WL 7495927 at *3 (D. Colo. Nov. 13, 2023) (noting
absence of Tenth Circuit precedent). Therefore, substantial grounds for difference of
opinion exist only if there is disagreement between the circuit courts that have ruled on
the issue.
No circuit court has rejected the nondelegable duty doctrine as an acceptable
avenue for municipal liability in the context of counties delegating their duty to provide
adequate medical care to private prison health care providers. Additionally, multiple
circuits have held that the nondelegable duty doctrine may be used as a method of
determining municipal liability. See King v. Kramer, 680 F.3d 1013, 1020 (7th Cir. 2012)
(finding that “the county cannot shield itself from § 1983 liability by contracting out its duty
to provide medical services . . . The underlying rationale is not based on respondeat
superior, but rather on the fact that the private company’s policy becomes that of the
County if the County delegates final decision-making authority to it.”); Crooks v. Nix, 872
F.2d 800, 804 (8th Cir. 1889) (concluding that “plaintiffs’ pleadings sufficiently allege
inadequate prison policies or medical supervision which, if true, would result in these
defendants being held liable just as if they had refused to deliver those services
themselves. The duty to provide such [medical] services lies within the statutory and
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constitutional obligation of the named [county] defendants. In this sense the defendants
have a nondelegable duty to provide medical care when needed”).1
Defendant attempts to show a circuit dispute by citing cases that appear to reject
the nondelegable duty doctrine as a viable theory of municipal liability. However, these
cases do not create a true dispute because they were resolved on other issues, and so
did not reject the nondelegable duty doctrine, or are otherwise distinguishable. See
Johnson v. Stempler, 373 F. App’x 151, 154 (3d 2010) (concluding that “[Plaintiff] is not
asserting a claim against a local governmental agency. His claim is against [the
commissioner of the Department of Corrections] personally”); Ruiz-Bueno v. Scott, 639
Fed. App’x 354, 365 (6th Cir. 2016) (finding no individual liability, the court declined to
address municipal liability); Reynolds v. Guiliani, 506 F.3d 183, 193–94 (2d Cir. 2007)
(addressing issue of municipal liability under the Food Stamp Act and Medicaid Act).
Because multiple circuits have accepted the nondelegable duty doctrine as a
viable theory of municipal liability, but no circuit courts have rejected the doctrine, there
is no substantial ground for difference of opinion.
2. 	The Issue is Not a Novel or Difficult Question of First Impression
The Court next turns to whether a novel or difficult question of first impression is
presented to establish a substantial difference of opinion. Both parties cite numerous
cases in this district addressing the validity of the nondelegable duty doctrine as a theory
1 Plaintiff also cites cases that appear to support the nondelegable duty doctrine, but ruled on other grounds.
These cases do not change the Court’s analysis. See Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1247
(6th Cir. 1989) (“The Sheriff’s failure to supervise . . . and his failure subsequently to punish the responsible
individuals is more than sufficient evidence of a policy or custom to render the County liable for [Plaintiff]’s
damages.”); Ancata v. Prison Health Services, Inc., 769 F.2d 700, 706 (11th Cir. 1985) (finding that “If
plaintiff can establish . . . that the sheriff was personally involved in the acts depriving [deceased] of his
constitutional rights, or that he breached a duty imposed by state law and that that breach caused the
plaintiff’s injury, then he would be fully responsible for his own actions and/or policies”).
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of municipal liability. ECF No. 169 at 3; ECF No. 176 at 8–9. Therefore, this case is neither
novel nor a difficult question of first impression.
C. Appeal Does Not Materially Advance the Ultimate Termination of Litigation
The Court must next determine whether certification of interlocutory appeal will
materially advance the ultimate termination of the litigation. “An immediate appeal
advances termination if it would (1) eliminate the need for trial, (2) eliminate complex
issues so as to simplify the trial, or (3) eliminate issues to make discovery easier and less
costly.” XTO Energy, Inc., 189 F.Supp.3d at 1195. An appeal would not materially
advance the ultimate termination of litigation when the litigation will be conducted in the
same manner regardless of the court’s decision. Id. In determining whether an appeal will
materially advance the litigation’s termination, the court must “review the procedural and
substantive status of the case with respect to the progress or completion of discovery, the
disposition of pretrial motions, the extent of the parties' preparation for trial, and the nature
and scope of the requested relief.” Id.
In 	addition 	to 	Sheriff 	Marinelli, 	Plaintiffs 	bring 	claims 	against 	six 	individual
defendants and Wellpath. These claims arise from the same facts. The parties engaged
in discovery for more than nine months before Sheriff Marinelli filed her motion. The other
claims will move forward regardless of whether the certification for interlocutory appeal is
granted. Therefore, interlocutory appeal on the issue of the nondelegable duty doctrine
will not eliminate the need for a trial or make discovery easier or less costly.
Sheriff Marinelli argues that an appeal would simplify litigation because a favorable
decision in the Tenth Circuit would result in Sheriff Marinelli’s claims not going to trial. The
Court disagrees. Defendant’s argument relies on the assumption that the Tenth Circuit
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would reject the nondelegable duty doctrine. If the Court granted the instant motion and
the Tenth Circuit accepted the nondelegable duty doctrine as a theory of liability, litigation
would be complicated by an appeals process with the same result as in the original order.
Therefore, it cannot be concluded that an appeal will definitively simplify the trial.
Additionally, Sheriff Marinelli argues that a Tenth Circuit ruling on the nondelegable
duty theory of liability might resolve litigation is similar cases pending in the District of
Colorado. This argument is irrelevant to whether interlocutory appeal is appropriate in this
case.
IV. CONCLUSION
Consistent 	with 	the 	above 	analysis, 	Defendant’s 	Motion 	for 	Certification 	of
Interlocutory Appeal is DENIED.
DATED this 15th day of November 2024.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
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