Free Motion for Summary Judgment - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01271-EWN-BMB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA R. LYNN KEENER ROBERT SCRANTON, in their individual and official capacities, and ESTATE OF OPAL WILSON Defendants. ______________________________________________________________________________ DEFENDANT ROBERT SCRANTON'S VERIFIED MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ COMES NOW, Robert Scranton, individually and moves for summary judgment to Fed. R. Civ. P. 56(c). As support for this Motion, Amended Defendants state as follows: 1. The Amended Complaint alleges that Amended Defendant Scranton violated the Plaintiff's rights pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983, 42 U.S.C. § 1981, 42 U.S.C. § 1985, 42 U.S.C. § 1986, 42 U.S.C. § 1997 and 28 U.S.C. § 1367. The essential and controlling statute under Plaintiff's complaint is 42 U.S.C. § 1983. 2. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R .Civ. P. 56(c).

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3. To state a cause of action under 42 U.S.C. § 1983 for an alleged violation of the Fourteenth Amendment and provisions of the Bill of Rights incorporated into the Fourteenth Amendment, the challenged conduct must constitute state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930-32, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Pino v. Higgs, 75 F.3d 1461, 1464 (10th Cir.1996). 4. In this case, the Plaintiff alleges that the Amended Defendant Scranton engaged in conduct that violated his constitutional rights. The various alleged violations of the Plaintiff's Civil Rights are based on actions allegedly taken by the State of Colorado and the prison system shortly after the Amended Plaintiff Scranton, as counsel for the Estate and the Personal Representative, inquired into the Plaintiff's role in the production of documents in two El Paso County Civil cases. Subsequent to Amended Plaintiff Scranton's inquiry, it was determined that these documents were the product of fraud. Plaintiff had tricked certain prison workers and inmates into unwittingly participating in the documents production. Where, as here, a § 1983 claim is based on the conduct of a private individual, that conduct constitutes state action if it is " 'fairly attributable to the state.' " Pino, 75 F.3d at 1465 (quoting Lugar, 457 U.S. at 937, 102 S.Ct. 2744). A private individual's conduct is "fairly attributable to the state" if two conditions are met: a. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the state is responsible.

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b. Second, the private party must have acted together with or ... obtained significant aid from state officials or engaged in conduct otherwise chargeable to the State." Id. (quoting Wyatt v. Cole, 504 U.S. 158, 162, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). Neither of the required conditions under the test applied in Pino, are met in this case, therefore, Plaintiff's complaint must fail. Amended Defendant Scranton did not and could not deprive the Plaintiff of any rights or privileges nor did the Amended Defendant Scranton obtain significant aid in allegedly depriving the Plaintiff of any right that is otherwise chargeable to the State. 5. A private individual does not engage in state action simply by availing himself/herself of a state procedure. Scott v. Hern, et. al, 216 F.3d 897, 2000 CJ C.A.R. 3056 (10th Cir. 2000). In Pino, the facts involved an alleged violation of § 1983 arising from an involuntary commitment in the State of New Mexico. Pino, 75 F.3d at 1463- 64. One of the defendants was a private therapist who called the police and advised them that the plaintiff should be hospitalized. See id. at 1465. The court held that the private therapist did not exercise "some right or privilege" or act under a "rule of conduct" created by state law when she made a report "of noncriminal activities requiring a response from state officials." Id. at 1465-66; see also Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir.1999) ("A private citizen does not become a state actor by initiating civil commitment procedures against another person.") (citation omitted); cf. Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987) (holding that complaining to a police officer about an individual's conduct does not constitute state action simply because the officer arrests that individual following questioning).

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As in this case, Amended Defendant Scranton merely had contact with the State of Colorado prison system through investigator Montoya to find out information regarding two default judgments filed by the Plaintiff in the two El Paso County District Court civil cases against a 92 (+) year old woman (95 years old on her date of death), Opal Wilson, now the decedent in the El Paso County District Court probate case. The action of contacting the State of Colorado by Counsel for the Personal Representative of the Estate of Opal Wilson, while not statutorily mandated, is certainly part of Counsel's role in his representation of the Personal Representative and his fiduciary duties under the Colorado Uniform Probate Code. Therefore, Counsel's actions where reasonable under the circumstances and did not include any actions that might be construed as State conduct. Rather, such actions were the result of Counsel's representation of the Personal Representative exercising his fiduciary duty to the decedent's Estate as prescribed by the Colorado Probate Code. Additionally, in Lee v. Estes Park, 820 F.2d 1112, 1115 (10th Cir.1987), the court held that a private individual who placed the plaintiff under civilian arrest and took him to the police station was not "jointly engaged with state officials" because the police officer made the independent judgment to charge the plaintiff with an offense. In this case, Investigator Montoya, like the police officer in Lee, exercised his independent judgment when confronted with the information supplied by Counsel for the Personal Representative of the Estate of Opal Wilson regarding the two default judgments entered in El Paso County District Court cases by the Plaintiff. The documents purporting to have notified Opal Wilson of impending litigation turned out to be fraudulent on their face

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upon subsequent investigation by Investigator Montoya. Plaintiff and other prisoners misled an employee of the prison when notarizing signatures. Such investigation could not have been conducted by Counsel for the Personal Representative as he did not have access to the employees of the Colorado State prison system whom the Plaintiff unwittingly involved in his scheme of fraud. 6. To bring a claim under § 1983, a plaintiff must initially establish that a defendant acted "under color of any statute, ordinance, regulation, custom, or usage, of any State" to deprive the plaintiff of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996). There are no facts alleged or proved that indicate that any of the Amended Defendant Scranton was a state actor. (see attached hereto, Amended Defendant Scranton's affidavit as Exhibit A) In Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.), the court stated: "[I]n order to hold a private individual liable under § 1983, it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State." As referenced above, there simply are no such facts in this case to charge the Amended Defendant Scranton with state action, colorable or otherwise. 7. Plaintiff asserts in his pleadings that Amended Defendant Scranton acted in a conspiracy with Investigator Montoya to violate the Plaintiff's civil rights. For the sake of argument, Plaintiff's Complaint alleges that the Amended Defendant Scranton acted in such "close nexus" with Investigator Montoya as to create state action through an alleged conspiracy.

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Such is not the case. In Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534, the court analyzed this "close nexus" issue and held that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." In Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996), the court held that calling authorities to report the possibility of a crime did not invoke state action on the part of the private actor. Nor, did such actions create any kind of state authority in the private individual to create actions under the color of state action on behalf of the private actor. In this case, Amended Defendant Scranton's actions in contacting the State of Colorado to report a suspected crime regarding the false service of process certificates in the El Paso District Court cases, where two default judgments had been obtained by the Plaintiff, does not rise to the level of state action or acting under the color of state authority. Additionally, the Amended Defendant Scranton's cooperation with the State of Colorado by communicating with Investigator Montoya does not rise to the level of state action or acts under the color of state authority. 8. Plaintiff has alleged that Amended Defendant Scranton was in a conspiracy with Investigator Montoya to establish state action. Such is not the case. In Scott v. Hern, et. al, 216 F.3d 897, 2000 CJ C.A.R. 3056 (10th Cir. 2000), the court stated ruled that a conspiracy does not exist where under similar circumstances a plaintiff alleged that a conspiracy existed between a state actor and a private individual to create the indicia of state action where none existed. In

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Scott v. Hern, the court analogized that "When a plaintiff in a § 1983 action attempts to assert the necessary 'state action' by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action." See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (citing Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983)). Additionally, the court in Scott v. Hern, held that heightened pleading requirements regarding § 1983 claims alleging a conspiracy between private individuals and state officials apply even after Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), in which the Supreme Court declined to apply a heightened pleading standard to § 1983 claims against municipalities. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998). In this case, Plaintiff has alleged no facts that would lead a fact finder to reasonably believe that a conspiracy existed between the Amended Defendants and Investigator Montoya to violate the Plaintiff's Civil Rights. 9. Finally, Plaintiff has alleged that Amended Defendant Scranton withheld exculpatory information in the concealment of an affidavit of Inspector Montoya for 16 months. a. Factually, Plaintiff filed two civil cases in El Paso County, Colorado, District Court. One case 02 CV 4252. This case was filed on December 19, 2002, alleged Plaintiff had provided work and repairs to Opal Wilson's residence and had not been paid for such services. In Plaintiff's Return of Service, which was later determined to be

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fraudulent, Plaintiff listed Gerry Lucas as the process server. Later it was determined that Gerry Lucas was also an inmate and could not have served Opal Wilson on the date listed in the Return of Service because he himself was incarcerated in the same facility as the Plaintiff and had no access to Opal Wilson. b. The second case against Opal Wilson in El Paso County, Colorado, District Court was 03 CV 858. In this case, Plaintiff alleged he sold Opal Wilson goods in the amount of $52,500.00. The Return of Service document for this case listed Daniel Ingraham as the process server. Upon investigation by Inspector Montoya, it was established that the notary, Marlene Ybarra, was an employee of the prison and did not notarize the document. c. Factually, each case required a difference set of facts to disprove each return of service document. Each return of service document was different, allegedly served on two different dates, with two different process servers and with two different notaries. While each return of service document was shown to be fraudulent, neither document had any factual basis relating to the other, other than the Plaintiff in this case was also the Plaintiff in 02 CV 4252 and 03 CV 858 and the Plaintiff was suing Opal Wilson, and 95 year old woman who died in a nursing home for services and goods for which the Plaintiff (nor anyone else) has no documentation of providing. d. Amended Defendant Scranton prepared the two affidavits in question, one signed and dated by Inspector Montoya on January 30, 2004 (the "First Affidavit")(see attached

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Exhibit C) and the other signed and dated on March 19, 2004 (the "Second Affidavit")(see attached Exhibit D). e. The First Affidavit was prepared after a telephone interview with Inspector Montoya regarding his investigation. Amended Defendant Scranton never met with Inspector Montoya in person. Amended Defendant Scranton then mailed the affidavit to Inspector Montoya for his signature via United States Postal Service. f. The Second Affidavit was prepared by Amended Defendant Scranton without a telephone interview with Inspector Montoya for the specific purpose including only those facts that were relevant to the facts and circumstances of the 02 CV 4252 case during the time period where the Plaintiff was represented by Counsel, Kent Gray, Esq., in collection proceedings. After it was shown that the default judgments were the product of fraud, attorney Gray withdrew as counsel for the Plaintiff. g. Each civil case, 02 CV 4252 and 03 CV 858, are completely factually different in every aspect. Therefore, the Second Affidavit could not and did not modify or amend in any way, the First Affidavit. Each affidavit, taken solely or collectively is a true and accurate statement of what Investigator Montoya disclosed to Amended Defendant Scranton. (see attached Exhibit B) h. Plaintiff in this case, filed two distinct civil cases. Each civil case was factually different. Each return of service was fraudulent based on completely different factual scenarios. Therefore, the fact that the Second Affidavit does not address the facts that

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relate to the civil case 03 CV 858, has absolutely nothing to do with the statements made by Inspector Montoya in the First Affidavit regarding civil case 03 CV 858. i. There are no statements of Inspector Montoya contained in the Second Affidavit that modify or amend the statements of Inspector Montoya contained in the First Affidavit. (see attached Exhibit B) Each affidavit is factually true as it relates to the statements of Inspector Montoya and therefore, Plaintiff had full disclosure of all the information contained in the Second Affidavit because that information was also the exact same information contained in the First Affidavit, minus only the information as it related to the 03 CV 858 civil case which remained the statement(s) of Inspector Montoya. WHEREFORE, Amended Defendant Scranton respectfully requests that this Court enter an Order: a. Grant Amended Defendant Scranton's Motion for Summary Judgment; b. Dismiss all claims against Amended Defendant Scranton; and c. Grant any other relief that this Court deems just and proper.

Respectfully submitted this 4th day of April, 2007. AMENDED DEFENDANT SCRANTON

By:__/s/_Robert J.M. Scranton_______________ Robert J.M. Scranton, 30638 (Colo.) 231 E. Vermijo Ave. Colorado Springs, CO 80903 (719) 477-0333 10

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 31st day of October, 2006, I electronically fined the forgoing MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system and hereby certify that I have mailed or served the foregoing document on the following non-CM-ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: VIA U.S. MAIL: Patrick M. Hawkinson Reg. No. 62702 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034 James A. Montoya c/o Cathie Holst Department of Corrections 2862 South Circle Drive Colorado Springs, CO 80906 By:__/s/_Robert J.M. Scranton_______________ Robert J.M. Scranton, 30638 (Colo.) Attorney for Amended Defendants R. Lynn Keener, Robert Scranton and the Estate of Opal Wilson 231 E. Vermijo Ave. Colorado Springs, CO 80903 (719) 477-0333

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