Free Objection to Report and Recommendations - District Court of Colorado - Colorado

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

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Filed 02/16/2007

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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 OBJECTIONS TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ Defendant James A. Montoya ("Montoya"), by and through his counsel, Awilda R. Marquez, Esquire, of Hall & Evans, L.L.C., hereby objects to the Recommendation of the United States Magistrate Judge as follows: I. Introduction United States Magistrate Judge Boland recommended that Defendant Montoya's Motion to Dismiss First Amended and Supplemented Complaint be granted as to all claims against Montoya in his official capacity, and as to any claim against Montoya for compensatory damages. Magistrate Judge Boland recommended that Defendant Montoya's Motion to Dismiss be denied as to Montoya's assertion of qualified immunity on the claims of access to the courts and retaliation.

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II.

Preservation of rights Defendant Montoya files this Objection in order to preserve his right to assert factual or

legal issues addressed in the Magistrate's Recommendation on appellate review at a further stage in this case, should the occasion arise. This Court has a "firm waiver rule" when a party fails to object to the findings and recommendation of the United States Magistrate Judge. If a party fails to timely object, she waives appellate review of any factual or legal issues. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1114 (10th Cir. 2004) (quotation omitted). To avoid the possible application of the "firm waiver rule" at a later stage in this case, Defendant Montoya files objections as set forth below. III. Right to Access the Courts United States Magistrate Judge Boland noted that an inmate alleging denial of access to the courts must allege an actual injury. Recommendation of United States Magistrate Judge, at p. 8 (citing Lewis v. Casey, 518 U.S. 343, 349 (1977)). To establish actual injury, an inmate must show that the denial of access to the courts "hindered the prisoner's efforts to pursue a nonfrivolous claim." Id. (citing Lewis, 518 U.S. at 351). The actual injury requirement is not satisfied "by just any type of frustrated legal claim." Lewis, 518 U.S. at 354. The constitutional right to access the courts requires prisons to provide assistance to inmates in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. Id., at 355. Plaintiff did not suffer actual injury and lacks standing to pursue his claims. Defendant Montoya did not impair Plaintiff's access to the courts to attack his sentence or to challenge the

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conditions of his confinement. The Tenth Circuit has held that a prisoner must show that the actions by a defendant alleged to violate his right of access to the courts must have "hindered his efforts to pursue a nonfrivolous legal claim that either attacked his sentence or challenged the conditions of his confinement." Burden v. DRDC Warden, 2006 U.S. App. LEXIS 26654 (10th Cir. 2006) (copy attached as Exhibit A). See also, Holt v. Werholtz, 185 Fed. Appx. 737, 740 (10th Cir. 2006) (copy attached as Exhibit B) (to state a claim for deprivation of the fundamental right to access the courts, a prisoner must demonstrate that an actual injury hindered his efforts to pursue a non-frivolous legal claim concerning his conviction and sentence either in a direct appeal or habeas corpus proceeding or the conditions of his confinement in a § 1983 action); Cowles-Sims v. Fields, 72 Fed. Appx. 827, 829-830 (10th Cir. 2003) (copy attached as Exhibit C) (inmate's right to access to the courts extends only to nonfrivolous legal claims challenging her conviction or conditions of confinement, not a state court action involving a trust, a civil action unrelated to her conviction or conditions of confinement); Mackey v. Webb, 83 Fed. Appx. 309, 310 (10th Cir. 2003) (copy attached as Exhibit D) (the right of access to the courts extends only as far as protecting an inmate's ability to prepare initial pleadings in a civil rights action regarding his or her current confinement or in an application for a writ of habeas corpus); Taylor v. Stewart, 49 Fed. Appx. 262, 265 (10th Cir. 2002) (copy attached as Exhibit E) (under Lewis, the only tools prison authorities must provide are those that "the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental and perfectly constitutional consequences of conviction and incarceration" and a malpractice claim against a prisoner's attorneys does not fall within the Lewis rule).

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Moreover, even if Plaintiff has demonstrated actual injury, he cannot show that he was prejudiced by any action of Defendant Montoya. In his First Amended and Supplemented Prisoner Complaint, Plaintiff admits he was represented by counsel in the two civil actions in which he sought to obtain default judgments, later found to be obtained through fraud. First Amended and Supplemented Prisoner Complaint, at pp. 4-5, ¶¶ 15-17. Plaintiff had assistance of counsel in his efforts to enforce the default judgments. There was no barrier to Plaintiff

corresponding with his attorney in writing. Plaintiff claims Defendant Montoya impeded his ability to collect on the default judgments, but as stated in his Complaint, Plaintiff obtained his default judgments through the efforts of his lawyer. He was able to correspond with and receive correspondence from the courts. Plaintiff's effort to enforce his two civil default judgments was heard by the Court, which dismissed the judgments upon evidence that they were obtained through fraudulent notices of service of process. Plaintiff states in his Complaint that on

February 13, 2004, Defendants Keener and Estate of Opal Wilson moved for relief from the final judgments Plaintiff obtained against Opal Wilson, alleging that the returns of service in both cases were based "on outright fraud and misrepresentation." See Motions for Relief from Final (Default) Judgment Pursuant to C.R.C.P. Rule 60(b)(5) filed in Case Nos. 03CV858 and 02CV4252, attached as Exhibits C and D to Defendant Montoya's Motion to Dismiss. Plaintiff has made no showing that his access to the courts was compromised by Defendant Montoya's actions. The judicial decision to dismiss the default judgment simply does not qualify as an actual injury sufficient to support standing to assert a constitutional claim of denial of access to the courts.

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III.

Retaliation Magistrate Judge Boland noted in his Recommendation that plaintiff "`must prove that

but for the retaliatory motive, the incidents to which he refers ... would not have taken place.'" Recommendation of United States Magistrate Judge, at p. 10 (citing Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). Plaintiff's Complaint, however, itself demonstrates that the

actions taken did not have a retaliatory motive. Exhibit 6 of Plaintiff's Complaint, Step 3 Response Letter regarding Plaintiff's Grievance regarding the suspension of his phone privileges, states that his phone privileges were terminated because of Plaintiff's use of the phone to pursue the filing of false liens. Exhibit 7 of Plaintiff's Complaint, Step 3 Response Letter regarding Plaintiff's Grievance regarding the actions of Defendant Montoya states that, "all actions taken by Mr. Montoya are the result of an on-going criminal investigation, which is being conducted by Mr. Montoya on behalf of the Inspector General of the State of Colorado" and were part of "a legitimate and authorized criminal investigation, which will most likely result in the filing of criminal charges against [Plaintiff.]" As a result, Plaintiff did not state a claim for retaliation. For the foregoing reasons, Defendant Montoya asks that the Court reject the Recommendation of the United States Magistrate Judge, grant his Motion to Dismiss First Amended and Supplemented Prisoner Complaint, and grant such further relief as the Court deems fit.

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Dated this 16th day of February, 2007. Respectfully submitted, s/ Awilda R. Marquez 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 MONTOYA FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 16th day of February 2007, I electronically filed the foregoing DEFENDANT MONTOYA'S OBJECTIONS TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE with the Clerk of the Court using the CM/ECF system and hereby certify that 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 nonparticipant's name: Robert J.M. Scranton, Esq. 231 East Vermijo Avenue Colorado Springs, CO 80903 E-mail: [email protected] And I hereby certify that on this 16th 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/ Karen E. Reynolds, Secretary Awilda R. Marquez, Esq. Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202-2052 Phone No.: 303-628-3300 Fax No.: 303-628-4227 [email protected]

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