Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham

Civil Action No. 04-CV-01271-EWN-BNB

PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA, in his individual and official capacities; R. LYNN KEENER, ROBERT SCRANTON, and ESTATE OF OPAL WILSON, in their individual and official capacities. Defendants. ______________________________________________________________________________ FINAL PRETRIAL ORDER ______________________________________________________________________________

Defendant Montoya mailed to Plaintiff and the Amended Defendants a proposed Final Pretrial Order, including stipulated exhibit lists, on April 5, 2007. This proposed Final Pretrial Order includes the input of all Defendants. Defendants have not received input from the Plaintiff with regard to his claims, stipulations, witnesses or exhibits for purposes of submitting a jointlydeveloped Final Pretrial Order. Defendants propose stipulations regarding general facts and a proposed list of stipulated exhibits herein, but are unaware of Plaintiff's position on the proposed stipulated facts and exhibits.

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1.

DATE OF CONFERENCE

A pretrial conference was held before Judge Edward W. Nottingham commencing at 3:15 p.m. on April 20, 2007. The Plaintiff appeared pro se. Defendant James A. Montoya

("Montoya") was represented by Awilda R. Marquez of Hall & Evans, LLC. Defendants R. Lynn Keener, Robert Scranton, and the Estate of Opal Wilson were represented by Robert J. M. Scranton of Scranton P.C. 2. JURISDICTION

This Court has jurisdiction under federal question pursuant to 28 U.S.C. §1331 and under 28 U.S.C. § 1343(3). Plaintiff's claims of denial of his right of access to the courts and retaliation are brought pursuant to 42 U.S.C. § 1983 and the First Amendment to the United States Constitution. The subject matter jurisdiction of this Court is admitted by Defendants. 3. A. Plaintiff's Claims. CLAIMS AND DEFENSES

B.

Defenses of Defendant Montoya Montoya denies he initiated an investigation into Plaintiff's lawsuits against Opal Wilson

in order to prevent execution of the default judgments Plaintiff obtained in the lawsuits. Montoya acted in response to a request by the Representative of the Estate of Opal Wilson who, in the process of closing the Estate, uncovered two liens that Plaintiff had filed against Opal Wilson's property while he was incarcerated in prison and suspected wrongful activity by Plaintiff. Montoya's investigation of allegations of fraud against Plaintiff was proper and

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authorized under law. Montoya's investigation of Plaintiff's two civil actions concluded that Plaintiff had submitted fraudulent returns of service in order to obtain default judgments against Opal Wilson. Montoya shared his findings with the district attorney, who initiated criminal charges against Plaintiff. A jury found Plaintiff guilty of attempted theft based on his pursuit of the Opal Wilson cases. Montoya denies he violated Plaintiff's constitutional rights. Montoya denies he retaliated against Plaintiff, whether because Plaintiff filed civil actions and obtained judgments against Opal Wilson, or otherwise. Montoya denies he denied Plaintiff meaningful access to the courts. Montoya denies that the actions he took regarding Plaintiff were taken with retaliatory intent. Montoya states that the actions he took to investigate allegations of fraud by Plaintiff were taken for legitimate investigatory and penological purposes, including the placement of Plaintiff in administrative segregation. Montoya denies it was punitive segregation. Montoya denies that his request to limit Plaintiff's phone privileges was intended to prevent Plaintiff from communicating with his attorneys. He denies that the limitation on phone privileges prevented Plaintiff from communicating with his attorneys. Montoya denies that the seizure of Plaintiff's documents and books as evidence in support of criminal charges was retaliatory in nature. He denies that his request that Plaintiff be transferred from the private prison to a Colorado Department of Corrections facility was retaliatory in nature. Montoya states that the actions were taken for legitimate investigatory and penological purposes. Montoya also denies he submitted a false and perjurious affidavit describing the results of his investigation in support of the motions of Defendants R. Lynn Keener and the Estate of Opal

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Wilson to void the default judgments obtained by Plaintiff. Montoya states the affidavit was drafted and submitted for legitimate investigatory and penological purposes. Montoya denies he visited Plaintiff's pastor to cause strife and conflict between them. He denies he contacted the Denver Post with libelous and misleading information. He denies he "shopped" for a district attorney to file criminal charges against Plaintiff. Montoya states that the actions were taken for legitimate investigatory and penological purposes. Montoya denies that, but for alleged retaliation on his part, Plaintiff would have obtained default judgments against Opal Wilson totaling $70,000 plus costs and interest. Montoya denies Plaintiff's right of access to the courts was violated at all, whether by Montoya or otherwise. As defenses and affirmative defenses, Montoya asserts the following: The Complaint fails to state any claim as to which any relief may be granted respecting the Montoya. Plaintiff's litigation against Opal Wilson was a sham, was fraudulent and frivolous, and does not constitute conduct protected by the United States Constitution. Plaintiff failed to exhaust his available administrative remedies pertinent to some or all of his claims attempted by the Complaint, requiring the dismissal of all such claims. Plaintiff's claims against Montoya in his official capacity are barred by the Eleventh Amendment to the United States Constitution. Plaintiff's claims against Montoya in his official capacity are barred because Montoya is not a "person" within the meaning of 42 U.S.C. § 1983. Plaintiff's claims against Montoya do not rise to the level of constitutional violations sufficient to state a claim upon which relief may be granted. Montoya's actions were taken for legitimate, nondiscriminatory, penological purposes. Plaintiff fails to state a claim for punitive damages against Montoya in his individual capacity. Plaintiff's

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claim for punitive damages against Montoya in his official capacity is barred as a matter of law. The injuries and damages sustained by Plaintiff were proximately caused by his own acts or omissions and/or the acts or omissions of third parties over whom Montoya has no control or right of control. Montoya in his individual capacity is entitled to qualified immunity from Plaintiff's claims of constitutional violations. Plaintiff failed to mitigate his damages, if any, as required by law. Montoya may not be held liable on the basis of a theory of vicarious liability or respondeat superior for any alleged violation of the United States Constitution. Montoya's conduct was at all times lawful, justified and privileged and any actions complained of by Plaintiff in relation to Montoya were justified for penological reasons. All actions of Montoya taken with respect to Plaintiff were taken in good faith and were reasonable under the circumstances. The Affidavits filed by Montoya in the underlying lawsuits against Opal Wilson are protected under the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff is precluded from challenging the truthfulness and validity of the Affidavits that Montoya filed because such a challenge would call into question the legitimacy of Plaintiff's criminal convictions in 04CR11 on two felony counts of Attempted Theft (greater than $15,000), which were based on the Affidavits and Montoya's testimony in support thereof, and the convictions have not been reversed, expunged, or declared invalid. Plaintiff's civil claims against Opal Wilson for payment for services allegedly provided and goods allegedly sold were fraudulent and frivolous, and his lawsuits against Opal Wilson constituted sham litigation.

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Plaintiff is precluded under offensive collateral estoppel (issue preclusion) from submitting evidence regarding the validity of his civil claims against Opal Wilson because, in a trial in which Plaintiff had a full and fair opportunity to litigate, the identical claims, and the actions of Plaintiff in prosecuting them, were found by a jury of Plaintiff's peers in 04CR11 to have constituted felony Attempted Theft. The jury necessarily found on the merits that

Plaintiff's actions in filing and prosecuting the two lawsuits, including filing notices of service of process that were fraudulent and using the fraudulent notices to obtain default judgments, constituted intentional and substantial steps toward knowingly obtaining or exercising control over funds from Opal Wilson or her Estate by deception with the intent to permanently deprive her or her Estate of those funds. Pomeroy v. Waitkus, 183 Colo. 344, 350 (Colo. 1973); Burrell v. Armijo, 456 F.3d 1159, 1172 (10th Cir. 2006). C. Defenses of Amended Defendants Keener, Scranton and Estate of Opal Wilson Amended Defendants deny they took any actions that would restrict Plaintiff's access to the courts. Amended Defendants acted only in the best interests of the Estate of Opal Wilson while acting as fiduciaries of the Estate. Defendants at no time had any opportunities or authority, either implicit or explicit, to deny Plaintiff access to telephone services, attorney services, legal research or any other services necessary for the Plaintiff to access the court. Amended Defendants have an affirmative duty to the Estate of Opal Wilson to defend the estate from bogus or fraudulent liens pursuant to their respective fiduciary duties owed to the Estate. As such, Plaintiff never demonstrated that the factual basis for his lawsuits were

grounded in verifiable facts. In Plaintiff's lawsuit against the Decedent in 2002, Plaintiff alleged

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that he performed repair services on the Decedent's residence. Amended Defendants verified through their own personal inspection that no repairs had in fact been done to the residence within the five years or so preceding the Decedent's death. At no time did the Plaintiff offer any specific proof of the type of repairs and maintenance completed on the residence. In Plaintiff's lawsuit against the Decedent in 2003, Plaintiff alleged to have sold the Decedent unspecified merchandise. Not until Plaintiff's appeal of the District Court's decision did plaintiff provide specific information regarding the delivery of a "Federal Sideboard" to the Decedent. No such Federal Sideboard was in the possession of the Decedent at the time of her death. No property was sold by the decedent or gifted by the decedent during the time period wherein the Plaintiff claims to have delivered the Federal Sideboard to the decedent up to and including her death. Additionally, no break-ins, thefts or removal of property occurred at the decedent's residence during this same period of time between the alleged delivery of the Sideboard and the Decedent's death. Therefore, the circumstantial evidence would point to the fabrication of facts wherein the Plaintiff alleged to have delivered the Federal Sideboard to the decedent. Amended Defendants are private citizens. Therefore, amended defendants could not have acted on behalf of the State. It follows that Amended Defendants could therefore not have been state actors. Amended Defendant, R. Lynn Keener, contacted the State of Colorado prison system after discovering that two judgment liens were recorded against the Decedent's residence while in the process of administering the Estate. That contact was based on Keener's discovery, through an Internet search, that Patrick M. Hawkinson had previously sued the Governor of the

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State of Colorado as a prison inmate. Upon the discovery of this fact, Keener initially suspected the judgment liens were the product of identity theft and fraud because he was aware of the Decedent's finances and business dealings prior to her death. As the Decedent's nephew, Keener possessed intimate knowledge of the Decedent's property, finances and dealings during the critical time periods at issue in this case. After Keener's initial inquiry to the Colorado

Department of Prisons, the Department assigned Inspector James Montoya to investigate the validity of the source documents in the two civil cases wherein the default judgments had been obtained. Amended Defendant Scranton, as the attorney for the Estate, and Keener, the Personal Representative of the Estate, communicated with Inspector Montoya regarding the results of his investigation and prepared an affidavit based on Montoya's findings. Scranton included the affidavit in motions to have both default judgments vacated on the basis of fraud upon the court. Plaintiff, while represented by attorney Kent Gray, was unable to overcome, by evidence or any other means, the statements of Investigator Montoya. The court vacated both default judgments. Attorney Gray withdrew as counsel for Plaintiff soon after being presented with the affidavit of Inspector Montoya. Amended Defendant Scranton prepared a second affidavit based entirely on the first affidavit and using the exact same language, word for word, to rebut the Plaintiff's subsequent and numerous motions in the 2003 civil case, referencing the 2002 civil case as a basis for demonstrating the Plaintiff's bad acts in another civil case regarding the same parties. The second affidavit does not amend the first affidavit, but merely restates a portion of the first

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affidavit regarding the facts and circumstances surrounding the frauds committed against the Decedent in the 2002 civil case as an evidentiary matter. Amended Defendants did not act in a conspiracy with Inspector Montoya to deprive the Plaintiff of his civil rights. There is no evidence of any agreement among the Amended

Defendants to act in any conspiracy to harm the Plaintiff. Amended Defendants do, however, owe a fiduciary duty to the Estate of Opal Wilson. As such, the Amended Defendants did act in concert in the defense of the Plaintiff's fraudulent claims and liens as against the Decedent and subsequently the Decedent's Estate. Amended Defendants did not act at the direction of any State agency, employee or order of any court. Therefore, Amended Defendants were not acting under the color of any State authority and were not State actors for the purpose of the Plaintiff's claims as against the Amended Defendants. During discovery in the two underlying civil cases and in the probate case for the Estate of Opal Wilson, which is ongoing and currently set for trial on July 6, 2007, Plaintiff has failed to provide Amended Defendants with any tangible evidence that would establish that any of the foregoing defenses are not available, viable or valid. [Summarize the claims and defenses of all parties, including the respective versions of the facts and legal theories. Do not copy the pleadings. Identify the specific relief sought. Eliminate claims and defenses which are unnecessary, unsupported, or no longer asserted.]

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4. A.

STIPULATIONS

At the times relevant to Plaintiff's claim against Defendant Montoya for retaliation in

violation of his right to access the courts, Plaintiff was a prisoner of the Colorado Department of Corrections ("CDOC"), incarcerated first at Bent County Correctional Facility, then at the Arkansas Valley Correctional Facility, and now at the Sterling Correctional Facility, all in Colorado. B. Colo. Rev. Stat. § 17-1-103.8, Colorado Department of Corrections, Inspector General -

Duties, establishes the duties and responsibilities of the Office of the Inspector General. C. Colorado Department of Corrections, Administrative Regulation 100-39, Peace Officers,

establishes the authority of peace officers. D. Colorado Department of Corrections, Administrative Regulation 850-12, Telephone

Regulations for Offenders, establishes procedures for prisoners' access to telephone. E. Colorado Department of Corrections, Administrative Regulation 750-3, Offender Access

to Counsel, establishes procedures for prisoners' access to legal counsel. F. The documents listed in the attached Stipulated Exhibit List are authentic, whether as

domestic public records, acknowledged documents, or subscribed testimony in an Affidavit. [Set forth all stipulations concerning facts, evidence, and the applicability of statutes, regulations, rules, ordinances, etc.] 5. None. PENDING MOTIONS

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6. A.

WITNESSES

Plaintiff's WILL CALL NonExpert Witnesses (1)

B.

Plaintiff's MAY CALL NonExpert Witnesses (1)

C.

Defendant Montoya's WILL CALL NonExpert Witnesses (1) Plaintiff Patrick M. Hawkinson, c/o Case Manager, Sterling Correctional

Facility, Sterling, Colorado, for cross-examination. Mr. Hawkinson is expected to testify in person concerning his knowledge and information regarding the issues relevant to this matter, including but not limited to the facts underlying his criminal conviction, his pursuit of the lawsuits he filed against Opal Wilson, the facts underlying his lawsuits against Cheryl Richardson and Susan Barker related to the Opal Wilson matter, his dealings with Defendant Montoya, the facts related to his claim of retaliation, his claimed damages, and all related issues. (2) James A. Montoya, c/o counsel for Defendant Montoya, is expected to testify in

person concerning his duties and responsibilities as a Criminal Investigator for the Office of the Inspector General in the Colorado Department of Corrections, the investigation he undertook regarding Plaintiff's claims of having provided goods and services to Opal Wilson, Plaintiff's lawsuits against Opal Wilson, the actions Defendant Montoya took with regard to Plaintiff's lawsuits against Opal Wilson, and all related issues.

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(3)

Terry Reeves, c/o counsel for Defendant Montoya, is expected to testify in

person concerning the investigation of Plaintiff's activities involving his lawsuits against Opal Wilson, and all related issues. (4) Robert Scranton, Esq., is expected to testify in person concerning his initial

contact with Defendant Montoya regarding liens that were discovered had been placed on the property in the Estate of Opal Wilson, the actions he took with regard to Plaintiff's lawsuits against Opal Wilson, and all related issues. D. Defendant Montoya's MAY CALL NonExpert Witnesses (1) Eugene Gonzales, c/o counsel for Defendant Montoya, is expected to testify in

person concerning the process surrounding Plaintiff's custody rating reclassification, the increase in Plaintiff's security level, and all related issues. (2) Susan Grisenti, c/o counsel for Defendant Montoya, is expected to testify in

person concerning telephone regulations for prisoners, the effect of a suspension of telephone privileges on Plaintiff's access to his lawyer, and all related issues. (3) R. Lynn Keener, c/o Robert Scranton, Esq., is expected to testify in person

concerning his initial discovery of liens placed on the property in the Estate of Opal Wilson by Plaintiff, and all related issues (4) Rev. Charles Darr, 2840 S. Circle Drive, Colorado Springs, Colorado 80906, is

expect to testify in person concerning his knowledge of the investigation conducted by Defendant Montoya, his relationships with Opal Wilson and with Plaintiff, his knowledge of the relationship between Plaintiff and Opal Wilson, his management of a bank account for Plaintiff

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established to conduct business-related and other financial transactions on Plaintiff's behalf, Opal Wilson's knowledge of the lawsuits filed by Plaintiff, the use of his address as a "mail drop" for Plaintiff's alleged businesses, the circumstances surrounding the end of his relationship with Plaintiff, and all related issues. E. Defendants Keener, Scranton and Estate of Opal Wilson's WILL CALL NonExpert Witnesses (1) James A. Montoya, c/o counsel for Defendant Montoya, is expected to testify

regarding the contact between himself and Amended Defendants, R. Lynn Keener and Robert Scranton and the actions he took to investigate the documents the Plaintiff used to commit fraud upon the District Court for the County of El Paso, State of Colorado in case numbers 02 CV 4252 and 03 CV 858, and all related issues. (2) Robert J.M. Scranton, is expected to testify regarding contact with Investigator

Montoya and the preparation of the two affidavits regarding the documents the Plaintiff used to commit fraud upon the District Court for the County of El Paso, State of Colorado in case numbers 02 CV 4252 and 03 CV 858, and all related issues. (3) R. Lynn Keener, is expected to testify regarding contact with the State of

Colorado Department of Prisons and Investigator Montoya regarding the documents the Plaintiff used to commit fraud upon Opal Wilson and upon the District Court for the County of El Paso, State of Colorado in case numbers 02 CV 4252 and 03 CV 858. Keener is also expected to testify as to the basis of his suspicions of fraud regarding his initial discovery of the liens as recorded on the Decedent's real property, and all related issues.

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(4)

Plaintiff Patrick M. Hawkinson, c/o Case Manager, Sterling Correctional

Facility, Sterling, Colorado, for cross-examination. Mr. Hawkinson is expected to testify concerning his knowledge and information regarding the issues relevant to this matter, including but not limited to the facts underlying his lawsuits against Opal Wilson and the default judgments obtained in those lawsuits related to the Opal Wilson matter, his dealings with Defendant Montoya, his damages, and all related issues. (5) Rev. Charles Darr, 2840 S. Circle Drive, Colorado Springs, Colorado 80906, is

expect to testify concerning his knowledge of the investigation conducted by Defendant Montoya, his relationship with Opal Wilson, his relationship with Plaintiff, his knowledge of the relationship between Plaintiff and Opal Wilson, his management of a bank account for Plaintiff outside of prison to conduct business-related and other financial transactions on Plaintiff's behalf, Opal Wilson's lack of knowledge of the lawsuits filed by Plaintiff, the use of his address as a "mail drop" for Plaintiff's alleged businesses, and the circumstances surrounding the end of his relationship with Plaintiff, and all related issues. F. Defendants Keener, Scranton and Estate of Opal Wilson's MAY CALL NonExpert Witnesses (1) Kent Gray, Esq., is expected to testify regarding his dealings with Defendants

Keener and Scranton in the collection of the two default judgment liens. G. Expert Witnesses The parties do not intend to call expert witnesses.

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7. A. Plaintiff's Exhibits

EXHIBITS

[List the exhibits to be offered by each party. This list should be specific enough so that other parties and the court can understand, merely by referring to the list, each separate exhibit which will be offered. General references such as "all deposition exhibits" or "all documents produced during discovery" are unacceptable. If desired, the exhibit list form at the end of these materials may be used. The form is available from the court's web site at the same location as this Final Pretrial Order form.] B. Defendant Montoya's Exhibits See attached Defendant Montoya's Exhibit List. C. Defendants Keener, Scranton and Estate of Opal Wilson's Exhibits See attached Amended Defendants Keener, Scranton and Estate's Exhibit List. D. Copies of listed exhibits must be provided to opposing counsel no later than five days

after the Final Pretrial Conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served (by electronic means, hand delivery or facsimile) no later than eleven days after the exhibits are provided. 8. DISCOVERY

The Court has ordered leave for Defendant Montoya to depose Plaintiff, and the deposition is scheduled to be taken at Sterling Correctional Facility, with minimum five days' notice to Plaintiff.

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9.

SPECIAL ISSUES

Plaintiff is an inmate incarcerated at Sterling Correctional Facility, and his presence at trial will require a writ of habeas corpus ad testificandum. If Plaintiff intends to call witnesses who are also inmates incarcerated at a prison, they, too, shall require a writ of habeas corpus. In addition, arrangements would need to be made for their testimony via video teleconferencing. 10. EFFECT OF FINAL PRETRIAL ORDER

Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Preliminary Pretrial Order and the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 11. TRIAL AND ESTIMATED TRIAL TIME; TRIAL PREPARATION CONFERENCE

A.

Trial in this matter will be to a jury. The parties estimate the trial will take four (4) days,

in the United States District Court, Denver, Colorado. B. Trial Date:

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C.

Trial Preparation Conference Date and Time: At the trial preparation conference, counsel

are directed to comply with the Instructions Concerning Preparation for Trial Preparation Conference delivered to all parties at the Final Pretrial Conference. DATED this 20th day of April, 2007. BY THE COURT:

_________________________________ EDWARD W. NOTTINGHAM United States District Judge FINAL PRETRIAL ORDER TENDERED FOR REVIEW:

_______________________________ Patrick M. Hawkinson, #62702 Sterling Correctional Facility Box 1000 Sterling, CO 80751 PLAINTIFF PRO SE

_______________________________ Awilda R. Marquez, Esq. Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 [email protected] ATTORNEYS FOR DEFENDANT MONTOYA

_______________________________ Robert J.M. Scranton, Esq. 231 East Vermijo Avenue Colorado Springs, CO 80903 Telephone: (719) 477-0333 Fax: (719) 634-1579 [email protected] ATTORNEY FOR DEFENDANTS R. LYNN KEENER, ROBERT SCRANTON AND ESTATE OF OPAL WILSON

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