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

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

Document 264

Filed 02/22/2007

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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 RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE'S RECOMMENDATION RE: COMPENSATORY DAMAGES ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Hall & Evans, L.L.C., in response to Plaintiff's Objection to Magistrate's Recommendation re: Compensatory Damages ("Objection") states as follows: In the Recommendation, Magistrate Judge Boland noted that Plaintiff did not allege physical injury in his Complaint. Because the Prison Litigation Reform Act ("PLRA") under 42 U.S.C. § 1997e(e) requires a showing of physical injury regardless of the nature of the underlying substantive violation asserted, Plaintiff's claim against Defendant Montoya is barred to the extent it seeks compensatory damages. Recommendation of United States Magistrate Judge, at p. 13.

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

Document 264

Filed 02/22/2007

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Plaintiff objects to the Magistrate's Recommendation, arguing that he asserts no claim for mental or emotional injury, and therefore, 42 U.S.C. § 1997e(e) does not apply. Plaintiff's argument misconstrues the Tenth Circuit's holdings under the PLRA. The PLRA requires a showing of physical injury to support a claim for compensatory damages for a violation of constitutional rights. The pertinent provision of the PLRA provides, "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). By its plain language, § 1997e(e) requires a prisoner to allege a physical injury to bring a claim for "mental or emotional injury." The Tenth Circuit has held that the requirement of a showing of physical injury "clearly applies to claims for compensatory damages." Webster v. Kurtz, 2005 U.S. Dist. LEXIS 41503, 8-10 (D. Colo. 2005) (copy attached as Exhibit A) (citing Searles v. Van Bebber, 251 F.3d 869, 879-81 (10th Cir. 2001); Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 808 (10th Cir. 1999)). The Tenth Circuit notes that, "the underlying substantive violation ... should not be divorced from the resulting injury." Searles, 251 F.3d at 876. In his First Amended and Supplemented Prisoner Complaint ("Complaint"), Plaintiff requests compensatory, nominal, and punitive damages, along with declaratory relief and costs. Complaint, at p. 9. In the Objection, he argues that his claim for compensatory damages is "for his actual monetary loss associated with Defendant(s) unconstitutional actions that `resulted in the [State] civil court granting Defendant's motion for relief thus dismissing Plaintiff's Judgment(s) against Opal Wilson ­ costing Plaintiff more then [sic] $70,000.'" Objection, at p.

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

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Filed 02/22/2007

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2 (emphasis omitted). In other words, Plaintiff claims a loss of $70,000 resulting from a violation of his constitutional rights by Defendant Montoya. He alleges no compensable injury outside of the constitutional violation he has alleged. As noted in Webster, "because mental or emotional injuries would be the only cognizable injuries attributable to plaintiff's claims, compensatory damages are directly barred by § 1997e(e), but plaintiff may proceed in seeking nominal and punitive damages and the equitable relief set forth in his Complaint." Webster, 2005 U.S. Dist. LEXIS 41503, at 9-10. DATED this 22nd day of February, 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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Case 1:04-cv-01271-EWN-BNB

Document 264

Filed 02/22/2007

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 22nd day of February, 2007, I mailed a true and correct copy of the foregoing DEFENDANT MONTOYA'S RESPONSE TO PLAINTIFF'S OBJECTION TO MAGISTRATE'S RECOMMENDATION RE: COMPENSATORY DAMAGES 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 22nd day of February, 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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