Free Reply to Response to Motion - 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. ______________________________________________________________________________ REPLY TO PLAINTIFF'S RESPONSE TO AMENDED DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS ______________________________________________________________________________ COMES NOW, R. Lynn Keener, individually, Robert Scranton, individually and the Estate of Opal Wilson by and through the Personal Representative, R. Lynn Keener ("Amended Defendants"), by and through their attorney, and replies to Plaintiff's Response to Amended Defendants' Motion for Judgment on the Pleadings as follows: 1. Reply to Plaintiff's Factual Background a. Plaintiff misstates the record and the Complaint, referenced as Document 143, as containing certified facts. Plaintiff's complaint has no certified facts, merely the Plaintiff's unsubstantiated allegations that there exists a conspiracy between the Amended Defendants and Defendant Montoya. In Plaintiff's Complaint, Plaintiff attempts to cast state action upon Amended Defendants by asserting various

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unsubstantiated allegations. Consequently, it is a factual impossibility that Amended Defendants as private individuals could have deprived the Plaintiff of his access to the courts or his constitutional rights under the First or Fourteenth Amendment. Simply stated, Amended Defendants are not and could not be state actors under any set of circumstances as alleged. b. Plaintiff's response also fails in that Plaintiff asserts his access to the courts was deprived. By Plaintiff's own admission he was represented by outside counsel who could have continued with his collection actions based on Plaintiff's liens had there been a less than frivolous basis to continue. Since there was no basis to continue on Plaintiff's behalf because of the fraud committed by the Plaintiff upon the court in the service of the Decedent, Opal Wilson, Plaintiff's outside counsel was left with no option but to withdraw. Thereafter, Plaintiff continued his malicious and frivolous attack on the Decedent's Estate including an appeal of the trial court's decision to the Colorado Court of Appeals. Such appeal was denied as was Plaintiff's request for a rehearing. c. Plaintiff continues to refer to the two affidavits of Defendant Montoya incorrectly. Specifically, Plaintiff asserts that the second affidavit of Defendant Montoya amends his first affidavit or otherwise contradicts it. Such is not the case. Defendant Montoya signed each affidavit based on his personal knowledge of information obtained during his investigation of the Plaintiff's use of State employees and State resources in the fraud committed upon the District Court in the County of El Paso,

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State of Colorado. The two affidavits signed by Defendant Montoya were in response to issues raised by the Plaintiff in the two El Paso County District Court civil cases based on factual variations in each of those cases. Simply stated, the Montoya affidavits are cumulative and supplement in nature. There are no contradictions in the affidavits. d. Plaintiff has alleged that he had legitimate damages in the El Paso County Colorado District Court civil cases. Those courts determined the complaints were based in part on the fraudulent conduct of the Plaintiff beginning with his service of process on the Decedent. Such service never took place. Therefore, those courts never had jurisdiction over the Decedent and thus any default judgments obtained were of no affect. Although Plaintiff failed to bring the matter to trial for a hearing on the factual basis underlying his claims on those complaints, Defendant Montoya's affidavits provide sufficient information to establish that Plaintiff could not have engaged in the conduct that allegedly benefited the Decedent. 2. Reply to Plaintiff's Arguments and Points on Authority a. Plaintiff's First Statement. Plaintiff misstates the legal basis of his Complaint. Namely, Plaintiff asserts that his Complaint alleges Amended Defendants acted in a conspiracy to deprive him with access to the courts exclusively. However, while it may be true that Plaintiff asserts that allegation, the various U.S.C. sections cited in Plaintiff's Complaint are centered around Plaintiff's deprivation of his equal rights under the law, which necessarily includes the Fourteenth Amended to the United

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States Constitution as discussed by most courts when analyzing claims under 42 U.S.C. §§ 1343, 1981, 1983, 1985, 1986, 1997 and 28 U.S.C. § 1367 which were cited in Plaintiff's Complaint. b. Plaintiff's Second Statement. As a threshold matter, Plaintiff may not incorporate a pleading in his Response (Verified Motion for Summary Judgment) where the Amended Defendant's are not parties and have not been afforded the opportunity to respond. Additionally, Plaintiff continues to discuss his problems with the prison system wherein he is incarcerated. Respectfully and not to be redundant, Amended Defendants are private citizens (individuals) and have absolutely no connection (real or imagined) with the State of Colorado's prisons. Such is the definition and significance of an individual's incarceration in a State Criminal Facility; only the State of Colorado has control over the person while incarcerated (in this case the Plaintiff) and not other citizens or individuals. c. By way of example of Plaintiff's misunderstanding of the law as applied to the facts of this case, Plaintiff cites, Green v. Johnson, 977 F.2d 1383 (10th Cir. 1992) for the proposition that prison officials may not harass or intimidate an inmate. While Plaintiff cites the case for the correct proposition of law, Plaintiff totally ignores the facts in this case as the Amended Defendants are not agents, employees or officials of the State. Therefore, those cases (and numerous others) are irrelevant to the allegations made against the Amended Defendants.

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d. Plaintiff's Third Statement. Plaintiff continues to assert that Amended Defendants acted in a conspiracy with Defendant Montoya to violate his civil rights. Mere contact with an agent of the State, in this case Defendant Montoya, by the Amended Defendants, does not in and of itself rise to the level of the elements necessary to establish a conspiracy in this case. Plaintiff has made only mere allegations of conspiracy against the Amended Defendants but has failed to establish any factual basis for those allegations. Again, while Plaintiff cites caselaw wherein private citizens acted under the "color of state law" to violate the civil rights of other parties, in this case, Plaintiff's complaint and pleadings are devoid of any factual basis for his allegations to prove the elements necessary. e. Plaintiff's B. Statement re Frivolous or Malicious. Plaintiff asserts that the Amended Defendant's allegations that his actions in this case are Frivolous or Malicious are themselves Frivolous and Malicious. Such an argument is based on circuitous logic. Plaintiff has had full access to the Courts of the State of Colorado. Plaintiff failed to serve the Decedent properly. In fact, such service proved to be fraudulent. Upon offer of said proof, the Disctrict Courts vacated Plaintiff's default judgments. Thereafter, Plaintiff appealed such judgments to the Colorado Court of Appeals to no avail. Now, Plaintiff continues in his folly by attacking the Estate of the Decedent and its agents in those district court cases in this case. Plaintiff has failed to offer any credible proof that any of his allegations are true, in those district court civil cases and in this case as well. Plaintiff's Complaint is illustrative of a frivolous action wherein

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his allegations are unsupported by any substantiated facts beyond the mere allegations contained in the Complaint itself. As in this case, allegations alone are not enough to establish a legitimate basis for the filing of a complaint. WHEREFORE, Amended Defendants respectfully request that this Court enter an Order: a. Granting Amended Defendants judgment on the pleadings and dismissing all claims against Amended Defendants with prejudice for failure to state a claim upon which relief my be granted; or b. Dismissal of all claims against Amended Defendants because Plaintiff's complaint and action is frivolous and malicious; and c. Grant Amended Defendant's attorney fees and costs related to this Motion; and d. Granting any other relief that this Court deems just and proper.

Respectfully submitted this 28th day of November, 2006.

ATTORNEY FOR THE AMENDED DEFENDANTS

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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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 28th day of November, 2006, I electronically filed the forgoing REPLY TO PLAINTIFF'S RESPONSE TO AMENDED DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 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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