Free Answer to Amended Complaint - District Court of Colorado - Colorado

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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, in his individual and official capacities, R. LYNN KEENER, ROBERT SCRANTON, and ESTATE OF OPAL WILSON, Defendants. ______________________________________________________________________________ DEFENDANT MONTOYA'S ANSWER TO FIRST AMENDED AND SUPPLEMENTED PRISONER COMPLAINT ______________________________________________________________________________ Defendant James A. Montoya ("Montoya"), by and through his counsel, Hall & Evans, L.L.C., in answer to the Plaintiff's First Amended and Supplemented Prisoner Complaint ("Complaint"), states as follows: A. 1. PARTIES

With regard to the allegations contained in paragraph 1 of the Complaint,

Montoya admits only that Plaintiff is a prisoner of the Colorado Department of Corrections ("CDOC"), currently incarcerated at the Sterling Correctional Facility in Colorado. 2. With regard to the allegations contained in paragraph 2 of the Complaint,

Montoya admits only that he is a Criminal Investigator in CDOC's Office of the Inspector General, and that he has defined responsibilities pursuant to Colo. Rev. Stat. § 17-1-103.8 to

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enforce and administer the laws of the State of Colorado and that, at all times relevant hereto, he acted under color of state law. 3. Montoya lacks sufficient knowledge and information to form a basis for belief as

to the truth of the allegations contained in paragraph 3 of the Complaint, and therefore denies same. 4. Montoya lacks sufficient knowledge and information to form a basis for belief as

to the truth of the allegations contained in paragraph 4 of the Complaint, and therefore denies same. 5. Montoya lacks sufficient knowledge and information to form a basis for belief as

to the truth of the allegations contained in paragraph 5 of the Complaint, and therefore denies same. 6. Montoya. B. 7. JURISDICTION Paragraph 6 of the Complaint does not purport to require a response from

With regard to the allegations contained in paragraph 7 of the Complaint,

Montoya admits only that the statutes referenced therein exist and that jurisdiction and authority is vested in the Court pursuant to certain of such statutes. In all other respects, the allegations of paragraph 7 of the Complaint are denied. C. 8. NATURE OF THE CASE

With regard to the allegations contained in paragraph 8 of the Complaint,

Montoya admits only that Plaintiff filed two cases against Opal Wilson for breach of contract in

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the District Court for El Paso County, case numbers 02CV4252 and 03CV858. In all other respects, the allegations of paragraph 8 of the Complaint are denied. 9. With regard to the allegations contained in paragraph 9 of the Complaint,

Montoya admits only that the District Court for El Paso County granted Plaintiff default judgments against Opal Wilson in both cases totaling $70,000, plus 8% interest and $200 total in costs, and that Plaintiff subsequently filed the transcript of judgments against Opal Wilson's property. In all other respects, the allegations of paragraph 9 of the Complaint are denied. 10. With regard to the allegations contained in paragraph 10 of the Complaint, Montoya lacks sufficient

Montoya admits only that Opal Wilson died in October 2003.

knowledge and information to form a basis for belief as to the truth of the remaining allegations contained in paragraph 10 of the Complaint, and therefore denies same. 11. Montoya lacks sufficient knowledge and information to form a basis for belief as

to the truth of the allegations contained in paragraphs 11 and 12 of the Complaint, and therefore denies same. 12. With regard to the allegations contained in paragraph 13 of the Complaint,

Montoya admits only that Defendants Keener and the Estate of Opal Wilson ("Estate") contacted Montoya regarding the judgments and liens filed by Plaintiff against Opal Wilson and her property. In all other respects, the allegations of paragraph 13 of the Complaint are denied. 13. 14. Montoya denies the allegations contained in paragraph 14 of the Complaint. With regard to the allegations contained in paragraph 15 of the Complaint,

Montoya admits only that he obtained documents from the District Court for El Paso County confirming that Plaintiff filed two civil complaints against Opal Wilson and that Plaintiff

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obtained judgments against Opal Wilson in the two cases. In all other respects, the allegations of paragraph 15 of the Complaint are denied. 15. With regard to the allegations contained in paragraph 16 of the Complaint,

Montoya admits only that he offered Plaintiff an opportunity to be interviewed on January 26, 2004, regarding his knowledge of the liens filed in the El Paso County District Court cases #02CV4252 and #03CV858. After being advised that Montoya was investigating the legitimacy of the liens filed in the estate of Opal Wilson, and after Plaintiff was asked to explain how it was possible that $70,000 worth of work could be accomplished while he was in Columbine Community Corrections during the time he claims to have completed the work, Plaintiff declined to be interviewed and referred all questions to his attorney, Kent Gray. In all other respects, the allegations of paragraph 16 of the Complaint are denied. 16. Complaint. 17. With regard to the allegations contained in paragraph 19 of the Complaint, Montoya denies the allegations contained in paragraphs 17 and 18 of the

Montoya admits only that he conducted a criminal investigation of a complaint made against Plaintiff regarding liens Plaintiff filed in El Paso County District Court cases #02CV4252 and #03CV858, which were alleged to be fraudulent; that the criminal investigation included among other things the seizure of certain of Plaintiff's property from his cell, interviews of witnesses, review of documents and other investigative actions. In all other respects, the allegations of paragraph 19 of the Complaint are denied.

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18.

Montoya lacks sufficient knowledge and information to form a basis for belief as

to the truth of the allegations contained in paragraph 20 of the Complaint, and therefore denies same. 19. 20. 21. Montoya admits the allegations contained in paragraph 21 of the Complaint. Montoya denies the allegations contained in paragraph 22 of the Complaint. With regard to the allegations contained in paragraph 23 of the Complaint,

Montoya admits only that he submitted separate affidavits in El Paso County District Court cases #02CV4252 and #03CV858. Complaint are denied. 22. With regard to the allegations contained in paragraph 24 of the Complaint, In all other respects, the allegations of paragraph 23 of the

Montoya admits only that Plaintiff's phone privileges were never restricted with regard to access to his legal counsel, that Plaintiff's legal documents and law books are part of the record in the criminal case against him for attempted theft and fraudulent registration of legal documents, for which he was convicted and which, to the best of Montoya's knowledge, remains on appeal to the Colorado Court of Appeals. In all other respects, the allegations of paragraph 24 of the Complaint are denied. D. 23. CAUSE OF ACTION

Montoya responds to the allegations contained in paragraph 25 of the Complaint

in the same manner that he responded to the allegations of the preceding paragraphs of the Complaint, which responses are incorporated herein as though set out in full. CLAIM ONE (AMENDED) 24. Montoya denies the allegations contained in paragraph 26 of the Complaint.

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CLAIM TWO (AMENDED) 25. Montoya denies the allegations contained in paragraph 27 of the Complaint. E. 26. PREVIOUS LAWSUITS

Montoya lacks sufficient knowledge and information to form a basis for belief as

to the truth of the allegations contained in paragraph 28 of the Complaint, and therefore denies same. F. 27. ADMINISTRATIVE RELIEF

With regard to the allegations contained in paragraph 29 of the Complaint,

Montoya admits only that Plaintiff's grievance of the loss of his telephone privileges and his grievance regarding Montoya's investigation appear to have been exhausted. respects, the allegations of paragraph 29 of the Complaint are denied. G. 28. REQUEST FOR RELIEF In all other

Montoya denies that Plaintiff is entitled to any damages or to any of the relief

sought in sections I through VI of the Section entitled "G. Request for Relief" of the Complaint. GENERAL DENIAL Montoya denies each and every allegation of the Complaint that is not expressly admitted in this Answer. DEFENSES AND AFFIRMATIVE DEFENSES 1. The Complaint fails to state any claim as to which any relief may be granted

respecting Montoya. 2. 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.

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3.

Plaintiff's claims against Montoya in his official capacity are barred by the

Eleventh Amendment to the United States Constitution. 4. 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. 5. 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. 6. purposes. 7. Plaintiff's litigation against Opal Wilson was a sham, fraudulent and frivolous and Montoya's actions were taken for legitimate, nondiscriminatory, penological

is not protected by the Constitution. 8. Plaintiff's claims for punitive or exemplary damages against Montoya in his

individual capacity are barred, reduced, or in the alternative, are unconstitutional and would violate Montoya's rights under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. 9. Plaintiff's claims for punitive or exemplary damages against Montoya in his

official capacity are barred as a matter of law. 10. 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. 11. Montoya in his individual capacity is entitled to qualified immunity from

Plaintiff's claims of constitutional violations. 12. Plaintiff failed to mitigate his damages, if any, as required by law.

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13.

Some or all of the Plaintiff's claims are barred and/or limited by the Prison

Litigation Reform Act, 42 U.S.C. §§ 1997e et. seq. 14. On information and belief, some or all of Plaintiff's claims are barred by his

failure to comply with jurisdictional and administrative prerequisites to suit, including applicable deadlines. 15. Plaintiff is not entitled to the relief sought in the Complaint under any of the

theories asserted. 16. Montoya may not be held liable on the basis of any vicarious liability or

respondeat superior theory for any alleged violation of the United States Constitution. 17. Plaintiff was deprived of no well-settled liberty or property interest and he was

afforded all the rights, privileges and immunities guaranteed by the Constitution and no constitutionally protected interest is impugned with regard to any claim of Plaintiff. 18. 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. 19. All actions of Montoya taken with respect to Plaintiff were taken in good faith

and were reasonable under the circumstances, and no action taken by Montoya related to any "protected activity" of the Plaintiff. 20. Montoya specifically reserves the right to amend his Answer to include additional

defenses and affirmative defenses and/or delete defenses and affirmative defenses that have become inapplicable upon completion of additional discovery. WHEREFORE, having answered the allegations of Plaintiff's First Amended and Supplemented Prisoner Complaint in full, Montoya requests the Court to dismiss the Complaint

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in its entirety with prejudice and enter judgment in favor of Montoya and against Plaintiff, to award Montoya his attorneys' fees and costs, and for such further relief as this Court deems just and proper. MONTOYA DEMANDS A JURY TRIAL ON ALL ISSUES TRIABLE TO A JURY

Dated this 20th day of March, 2007. Respectfully submitted,

s/ Awilda R. Marquez Awilda R. Marquez #33063 of Hall & Evans, LLC 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 E-Mail: [email protected] ATTORNEYS FOR DEFENDANT JAMES A. MONTOYA

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on the 20th day of March, 2007, I electronically filed the foregoing DEFENDANT MONTOYA'S ANSWER TO FIRST AMENDED AND SUPPLEMENTED PRISONER COMPLAINT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Robert J.M. Scranton, Esq. 231 East Vermijo Avenue Colorado Springs, CO 80903 E-mail: [email protected] I further hereby certify that on this 20th day of March, 2007, I have mailed or served the foregoing document to the following non-CM/ECF participant in the manner (mail, handdelivery, etc.) indicated by the non-participant's name: Patrick M. Hawkinson, #62702 (via U.S. Mail, postage prepaid) Sterling Correctional Facility P.O. Box 6000 - SCF Sterling, CO 80751 Case Manager for Patrick Hawkinson (via U.S. Mail, postage prepaid) #62702 Sterling Correctional Facility P.O. Box 6000 - SCF Sterling, CO 80751

s/ Leslie Grauberger, Secretary Awilda R. Marquez, Esq. Hall & Evans, LLC 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 E-Mail: [email protected] Attorneys for Defendant James A. Montoya

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