Free Response to Objection to Report and Recommendation - District Court of Colorado - Colorado

Case 1:04-cv-01271-EWN-BNB

Document 92

Filed 09/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1271-EWN-BNB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA, and JENELLE BORDEN, in their individual capacities, Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE'S RECOMMENDATION TO DISMISS ______________________________________________________________________________ Defendants James A. Montoya and Jenelle Borden, by and through their counsel, Hall & Evans, L.L.C., in response to Plaintiff's Response and Objection to Magistrate's Recommendation to Dismiss, state as follows: I. The Rooker-Feldman link that precludes subject matter jurisdiction is based on a causal relationship between the Federal and state cases, not on identity of parties or claims Plaintiff's objection to the United States Magistrate's application of the Rooker-Feldman doctrine is that this case and Plaintiff's case in state court are not "inextricably intertwined" because neither the parties, the claims nor the "redress" are the same. The law, however, establishes different standard, one of causation. That is, where the state court judgment causes the injury about which Plaintiff complains in Federal court, then under the Rooker-Feldman doctrine, subject matter jurisdiction would not lie. Kenman Engineering v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002). Plaintiff admits that the dismissal of Plaintiff's judgments against

Case 1:04-cv-01271-EWN-BNB

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Opal Wilson in state court, which judgments were allegedly obtained on the basis of Defendant Montoya's actions, caused Plaintiff's "financial loss, emotional and mental stress." Complaint, at p. 4. In effect, Plaintiff asks this Court to decide that the state case against Ms. Wilson was wrongly decided because it relied on Defendant Montoya's unconstitutional interrogation and threatening of Plaintiff, his seizing of Plaintiff's legal documents, and his filing a fraudulent affidavit in the state case against Ms. Wilson. Complaint, at pp. 3c-3d. In his own words, therefore, Plaintiff establishes the causal connection between the state case against Ms. Wilson and Plaintiff's case against Defendant Montoya here in Federal court. II. Lack of subject matter jurisdiction under Rooker-Feldman does not rely on Plaintiff launching a direct attack on the state court judgment below Even if Plaintiff does not ask this Court directly to attack the state court judgments against Ms. Wilson, a decision against Defendant Montoya would necessarily have to find that Defendant Montoya's actions in the state court case, which actions provided proof that the state court judgments were fraudulently obtained, were unconstitutional. Such a result would unavoidably call into question the validity of the state court judgments. As a result, this Federal Court would be put in the position of reviewing the constitutionality of the state judgments in direct contravention of the principles of Rooker-Feldman. III. A newly introduced attempt to separate Defendants' seizure of Plaintiff's legal documents from actual injury only suffices to cause Plaintiff to lose standing Plaintiff's attempt in his Response and Objection to Magistrate's Recommendation to Dismiss to revise his claim of unconstitutional seizure of legal documents by Defendants into one that has no connection to the state judgments against Ms. Wilson is disingenuous. Plaintiff's own words in his Complaint are unambiguous: "Defendant Monoyas [sic] seizing ... all legal

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Case 1:04-cv-01271-EWN-BNB

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documents ... and Defendant Bordens [sic] prohibiting Plaintiff from researching on how to file ... caused the plaintiffs [sic] judgments to be dismissed." Complaint, at p. 22. Plaintiff's Complaint belies the argument he makes in his Response and Objection that the seizing of his legal documents was not connected to the state court judgments against Ms. Wilson. If this Court interprets Plaintiff's revised claim to allege only "the fact that [Defendant] Montoya seized Plaintiff's legal documents" as Plaintiff's constitutional injury, such a claim would eliminate his standing to sue and this Court's subject matter jurisdiction. Lewis v. Casey, 518 U.S. 343, 349 (1996). A response to a request that legal documents be returned, or that there be some redress for their having been taken from Plaintiff, is not the proper function of this Court. The Court is not an executive or administrative agent whose function is to ensure a prisoner has his legal documents. Such a claim does not assert the "actual or imminent harm" necessary to trigger the Court's judicial role and to obtain redress of a constitutional wrong. Id. at 350. Indeed, Plaintiff's revised claim that he just wanted his legal documents back does not assert a constitutional claim at all. There is no constitutional right to legal papers. The constitutional right that might apply to Plaintiff's request for redress is the right of access to the courts. Id. Yet, the court to which Plaintiff would have sought access was the state court in which his judgments against Ms. Wilson were issued! Even as redefined, therefore, Plaintiff cannot avoid the fact that his claims against Defendants are "inextricably intertwined" with the state court judgments he obtained against Ms. Wilson. These same arguments apply to Plaintiff's claim against Defendant Borden for her failure to let him photocopy his documents in the law library. Contrary to his assertion that "'[I]njury'

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Case 1:04-cv-01271-EWN-BNB

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itself is an eliment [sic] that is not required," in fact, "actual or imminent harm" is the foundation for his standing to sue. In failing to show how Defendant Borden's alleged actions actually caused him actual or imminent harm, Plaintiff fails to demonstrate standing to sue. Plaintiff

cannot have it both ways: Either the alleged actions of Defendants relate directly to the state case against Ms. Wilson or, if there is no connection to an actual case, Plaintiff alleges no actual harm and therefore lacks standing to sue. DATED this 22nd day of September, 2005. Respectfully submitted,

s/ Awilda R. Marquez____________ Awilda R. Marquez, Esq. Special Assistant Attorney General Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 [email protected] ATTORNEYS FOR DEFENDANTS

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Case 1:04-cv-01271-EWN-BNB

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 22nd day of September, 2005, I electronically filed the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE'S RECOMMENDATION TO DISMISS with the Clerk of the Court using the CM/ECF system and hereby certify that I have mailed the foregoing document to the following non-CM-ECF participant by depositing same in the U.S. Mail, postage prepaid, and address as follows: Patrick M. Hawkinson Reg. No. 62702 Arkansas Valley Correctional Facility PO Box 1000 Crowley, CO 81034

s/ Marlene Hightshoe, Secretary_______

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