Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01315-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff,
v.

JOHN HYATT, et. al. Defendants.

DEFENDANTS' REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (collectively, "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., pursuant to Fed. R. Civ. P. 12(b)(6), hereby submit this Reply in Support of Motion to Dismiss Plaintiff's Complaint, as follows: 1. As explained in the Defendants' Motion to Dismiss Plaintiff's Complaint

(the "Motion to Dismiss"), this Court dismissed Plaintiff's Complaint on a number of different bases, only one of which was the perceived lack of jurisdiction under Heck v. Humphrey, 512 U.S. 477 (1997). [See Motion to Dismiss, at p.3-4]. While the United States Court of Appeals for the Tenth Circuit remanded this case for reconsideration of the applicability of the Heck doctrine, it did not disturb any other conclusion of this

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Court, and did not overturn this Court's judgment on any basis. Judgment, 1/26/05, Doc. 56] 2.

[See Order and

On remand, this Court reconsidered its prior decision respecting the

applicability of the Heck doctrine in accordance with the Tenth Circuit's direction, and, overruling its prior determination on this issue, determined the Heck doctrine did not bar jurisdiction over Plaintiff's claims. [See Recommendation of United States Magistrate Judge, 3/3/03, Doc. 30; Order, 3/25/03, Doc. 32; Judgment, 3/27/03, Doc. 33]. Like the Tenth Circuit, however, this Court did not address its prior ruling with respect to the merits of Plaintiff's claims. [See id.] 3. Procedurally, Plaintiff argues the Tenth Circuit "implicitly" rejected

Defendants' alternative arguments in favor of dismissal, without actually addressing them, by stating "[i]f the court determines that it has jurisdiction, it should decide the merits . . . ." [Response to Motion to Dismiss ("Plaintiff's Response"), at p.1]. In reality, the Tenth Circuit did not reject any arguments, jurisdictional or otherwise, but instead determined only that the record was inadequate to resolve the jurisdictional issue, and remanded for further proceedings on that threshold issue. [See Order and Judgment, 1/26/05, Doc. 56]. Had the Tenth Circuit intended to either address or overturn this Court's determinations on the merits of the Plaintiff's claims, it would have said so, and Plaintiff's efforts to create a non-existent ruling by implication must be rejected. In addition, Plaintiff conveniently omits the latter part of the sentence he quotes, which states ". . . conducting any further proceedings that it deems necessary." [Id.] Clearly no further proceedings are necessary where the Court has already ruled on the merits

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of Plaintiff's claims and addressed the arguments raised by Plaintiff in opposition to the Motion to Dismiss. 4. Substantively, Plaintiff's Response does nothing more than re-hash the

arguments he previously made in opposition to Defendants' original Motion to Dismiss and in response to the Magistrate's Recommendation. [See Response to Motion to Dismiss, Doc.25; Plaintiff's Objections to Magistrate's Recommendations, Doc.31]. Because these arguments have already been considered and rejected by this Court, and because this Court's prior rulings on these arguments constitute the law of the case, this Court should affirm its prior dismissal of Plaintiff's claims for failure to state any claim upon which relief could be granted. Defendants have already previously addressed these arguments and incorporate their prior arguments and authorities on these issues herein by reference pursuant to Fed. R. Civ. P. 10(c). [See Defendants' Reply Brief, 1/3/02, Doc. 27]. 5. While Plaintiff spends much time re-stating his opposition to the various

other bases for this Court's dismissal of his claims, he fails to explain why he should be provided with a second opportunity to make the same failed arguments, and he fails to explain why the result should be any different should this Court agree to reconsider its prior rulings on the merits of his claims. Further, Plaintiff makes no effort to address the law of the case doctrine, which was expressly cited by Defendants, [see Motion to Dismiss, at p.2-3], and which bars Plaintiff's efforts to re-litigate these issues. 6. Plaintiff offers no rational reason why the Tenth Circuit's remand for

reconsideration of the jurisdictional issue, which included no discussion of and no ruling

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on the merits of Plaintiff's claims, would permit him to proceed with his claims despite an express ruling by this Court that they fail to state a claim upon which relief can be granted. WHEREFORE, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court dismiss the Plaintiff's claims against them, and for all other and further relief as this Court deems just and appropriate. Dated this 19th day of April, 2006. Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHULETA, NARD CLAAR, AND RICHARD HARLAN 4

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 19th day of April, 2006, 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: None and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHULETA, NARD CLAAR, AND RICHARD HARLAN
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