Free Appeal of Magistrate Judge Decision to District Court - 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-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 JAMES A. MONTOYA'S MOTION FOR RECONSIDERATION OF MAGISTRATE JUDGE'S ORDER DENYING LEAVE TO DEPOSE PLAINTIFF ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Hall & Evans, L.L.C., hereby requests the Magistrate Judge to reconsider his Order of March 12, 2007, denying Defendant Montoya Leave to Depose Plaintiff. 1 In support thereof, Defendant Montoya states as follows: As further discussed below, Defendant Montoya initiated his second effort to depose Plaintiff in the event his Motion to Dismiss Plaintiff's Amended Complaint was denied. In his Motion for Leave to Depose Plaintiff ("Motion"), Defendant Montoya noted the need to take Plaintiff's deposition for purposes of Plaintiff's pending Motion for Summary Judgment, to which the Magistrate had ordered a response by February 26, 2007, which date was extended to

Defendant Montoya requests reconsideration of, rather than files objection to, the Magistrate Judge's Order because the circumstances surrounding the failure of Defendant Montoya's previous effort to depose Plaintiff and the subsequent stay of discovery may provide clearer justification for allowing the deposition to proceed.

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April 26, 2007. The Motion for Leave was denied as moot, upon the Court's denial of Plaintiff's Motion for Summary Judgment. Yet, although not articulated in the Motion for Leave,

Defendant Montoya sought to depose Plaintiff because his first effort to do so before the stay of discovery was frustrated by Plaintiff's refusal to answer questions. The history of this case includes two periods during which motions to dismiss as a matter of law were pending. Upon Plaintiff's filing of his original Complaint, Defendant Montoya and another defendant who has been dismissed filed a Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, for Failure to State a Claim on December 6, 2004. The Magistrate Judge

recommended that the Motion to Dismiss be granted on August 24, 2005, but the Court disagreed and denied the Motion to Dismiss on March 16, 2006. Defendants answered

Plaintiff's Prisoner Complaint on April 4, 2006. On May 4, 2006, a scheduling conference was held, at which time the discovery schedule was established. The schedule called for discovery to be completed by September 8, 2006. Defendant Montoya scheduled Plaintiff's deposition for June 12, 2006. At the deposition, Plaintiff asserted a Fifth Amendment claim and refused to answer any questions about his lawsuits against Opal Wilson, which are the fundamental bases for his claims against Defendant Montoya. Plaintiff submitted a Motion for Protective Order on June 16, 2006, and the Court denied the Motion on June 28, 2006. On that same date, Plaintiff filed a First Amended and Supplemented Prisoner Complaint, dismissing one defendant and adding additional defendants. Defendant Montoya filed a Motion to Dismiss Plaintiff's First Amended and Supplemented Prisoner Complaint on the basis of subject matter jurisdiction (Eleventh Amendment and no "person" under 42 U.S.C. § 1983) and qualified immunity. On July 18, 2006, the Court stayed all pretrial proceedings ­ including

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discovery ­ pending decision on Defendant's Motion to Dismiss. The stay of discovery was in effect until the Court's decision on the Motion to Dismiss, which was issued on March 12, 2007. Now that the Court has decided against Defendant Montoya's dispositive motion, the stay of discovery should be lifted, and discovery should proceed. Defendant Montoya initiated another attempt to depose Plaintiff, by moving for leave to depose Plaintiff. Admittedly filed before the Court's decision on his Motion to Dismiss, Defendant Montoya filed the Motion in anticipation of re-launching the stayed discovery immediately upon a decision of the Court, were the Court to rule against Defendant Montoya. Plaintiff is incarcerated at the Sterling

Correctional Facility, and the logistics for taking his deposition require more detailed preparations than is otherwise the case. Defendant Montoya and the prison where Plaintiff is incarcerated had set a tentative date of March 26, 2007, for Plaintiff's deposition in the event the Court denied his Motion to Dismiss. In its Order Concerning Plaintiff's Motion for Summary Judgment, the Court set a Final Pretrial Conference for April 20, 2007. The parties have already exchanged initial disclosures. Defendant Montoya already served Answers to Plaintiff's Requests for Admissions and Requests for Authentication on June 28, 2006, before discovery was stayed. Defendant Montoya's

Answers to Plaintiff's Requests for Answers to Interrogatories are imminent. If Defendant Montoya's deposition of Plaintiff is allowed to proceed before the date scheduled for Final Pretrial Conference, discovery can be completed between Plaintiff and Defendant Montoya by April 20, 2007. Defendant Montoya will be severely prejudiced if he is unable to obtain deposition discovery from Plaintiff prior to trial. Defendant Montoya's prior attempt to depose Plaintiff

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was subverted by Plaintiff's refusal to answer questions on the basis of an implausible selfincrimination claim. Now that discovery is no longer stayed, the one remaining aspect of discovery that was stayed should be allowed to be completed. Defendant Montoya seeks only permission to depose Plaintiff, and no other discovery. For the above reasons, Defendant Montoya urges the Court to reconsider its decision and allow Defendant Montoya to depose Plaintiff prior to the Final Pretrial Conference. Dated this 13th 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 SERVICE (CM/ECF) I HEREBY CERTIFY that on the 13th day of March, 2007, I mailed a true and correct copy of the foregoing DEFENDANT JAMES A. MONTOYA'S MOTION FOR RECONSIDERATION OF MAGISTRATE'S ORDER DENYING LEAVE TO DEPOSE PLAINTIFF, with the Clerk of 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] And I hereby certify that on this 13th day of March, 2007, I have mailed or served the foregoing document to the following non-CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Patrick M. Hawkinson, #62702 (via U.S. Mail, postage prepaid) Sterling Correctional Facility P.O. Box 1000 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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