Free Motion for Judgment on the Pleadings - 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. ______________________________________________________________________________ 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 move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). As support for this Motion, Amended Defendants state as follows: 1. The Amended Complaint alleges that Amended Defendants violated the Plaintiff's rights pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983, 42 U.S.C. § 1981, 42 U.S.C. § 1985, 42 U.S.C. § 1986, 42 U.S.C. § 1997 and 28 U.S.C. § 1367. The essential and controlling statute under Plaintiff's complaint is 42 U.S.C. § 1983. 2. Amended Defendants are entitled to judgment on the pleadings under Fed. R. Civ. P. 12(c).

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3. To state a cause of action under 42 U.S.C. § 1983 for an alleged violation of the Fourteenth Amendment and provisions of the Bill of Rights incorporated into the Fourteenth Amendment, the challenged conduct must constitute state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930-32, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Pino v. Higgs, 75 F.3d 1461, 1464 (10th Cir.1996). 4. In this case, the Plaintiff alleges that the Amended Defendants engaged in conduct that violated his constitutional rights. The various alleged violations of the Plaintiff's Civil Rights are based on actions allegedly taken by the State of Colorado and the prison system shortly after the Amended Plaintiffs inquired into the Plaintiff's role in the production of documents in two El Paso County Civil cases. Subsequent to Amended Plaintiffs' inquiry, it was determined that these documents were the product of fraud. Plaintiff had tricked certain prison workers and inmates into unwittingly participating in the documents production. Where, as here, a § 1983 claim is based on the conduct of a private individual, that conduct constitutes state action if it is " 'fairly attributable to the state.' " Pino, 75 F.3d at 1465 (quoting Lugar, 457 U.S. at 937, 102 S.Ct. 2744). A private individual's conduct is "fairly attributable to the state" if two conditions are met: a. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the state is responsible. b. Second, the private party must have acted together with or ... obtained significant aid from state officials or engaged in conduct otherwise chargeable to the State."

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Id. (quoting Wyatt v. Cole, 504 U.S. 158, 162, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). Neither of the required conditions under the test applied in Pino, are met in this case, therefore, Plaintiff's complaint must fail. Amended Defendants did not and could not deprive the Plaintiff of any rights or privileges nor did the Amended Defendants obtain significant aid in allegedly depriving the Plaintiff of any right that is otherwise chargeable to the State. 5. A private individual does not engage in state action simply by availing himself/herself of a state procedure. Scott v. Hern, et. al, 216 F.3d 897, 2000 CJ C.A.R. 3056 (10th Cir. 2000). In Pino, the facts involved an alleged violation of § 1983 arising from an involuntary commitment in the State of New Mexico. Pino, 75 F.3d at 1463- 64. One of the defendants was a private therapist who called the police and advised them that the plaintiff should be hospitalized. See id. at 1465. The court held that the private therapist did not exercise "some right or privilege" or act under a "rule of conduct" created by state law when she made a report "of noncriminal activities requiring a response from state officials." Id. at 1465-66; see also Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir.1999) ("A private citizen does not become a state actor by initiating civil commitment procedures against another person.") (citation omitted); cf. Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987) (holding that complaining to a police officer about an individual's conduct does not constitute state action simply because the officer arrests that individual following questioning). As in this case, Amended Defendants merely contacted the State of Colorado prison system to find out information regarding two default judgments filed by the Plaintiff in the

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two El Paso County District Court civil cases against a 90 (+) year old woman, Opal Wilson, now the decedent in the El Paso County District Court probate case. The action of contacting the State of Colorado by the Personal Representative of the Estate of Opal Wilson, while not statutorily mandated, is certainly part of the Personal Representative's fiduciary duties under the Colorado Uniform Probate Code. Therefore, the Personal Representative's actions where reasonable under the circumstances and did not include any actions that might be construed as State conduct. Rather, such actions were the result of the Personal Representative exercising his fiduciary duty to the decedent's Estate as prescribed by the Colorado Probate Code. Additionally, in Lee v. Estes Park, 820 F.2d 1112, 1115 (10th Cir.1987), the court held that a private individual who placed the plaintiff under civilian arrest and took him to the police station was not "jointly engaged with state officials" because the police officer made the independent judgment to charge the plaintiff with an offense. In this case, Investigator Montoya, like the police officer in Lee, exercised his independent judgment when confronted with the information supplied by the Personal Representative of the Estate of Opal Wilson regarding the two default judgments entered in El Paso County District Court cases by the Plaintiff. The documents purporting to have notified Opal Wilson of impending litigation turned out to be fraudulent on their face upon subsequent investigation by Investigator Montoya. Plaintiff misled an employee of the prison when notarizing his signature. Such investigation could not have been conducted by

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the Personal Representative as he did not have access to the employees of the Colorado State prison system whom the Plaintiff unwittingly involved in his scheme of fraud. 6. To bring a claim under § 1983, a plaintiff must initially establish that a defendant acted "under color of any statute, ordinance, regulation, custom, or usage, of any State" to deprive the plaintiff of "any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996). There are no facts alleged or proved that indicate that any of the Amended Defendants are state actors. (see attached hereto, Amended Defendant's affidavits as Exhibits A and B) In Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.), the court stated: "[I]n order to hold a private individual liable under § 1983, it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State." As referenced above, there simply are no such facts in this case to charge the Amended Defendants with state action, colorable or otherwise. 7. The remaining issue in the Plaintiff's pleadings asserts that the Amended Defendants acted in a conspiracy with Investigator Montoya to violate the Plaintiff's civil rights. For the sake of argument, Plaintiff's Complaint alleges that the Amended Defendants acted in such "close nexus" with Investigator Montoya as to create state action through an alleged conspiracy. Such is not the case. In Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534, the court analyzed this "close nexus" issue and held that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has

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provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." In Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996), the court held that calling authorities to report the possibility of a crime did not invoke state action on the part of the private actor. Nor, did such actions create any kind of state authority in the private individual to create actions under the color of state action on behalf of the private actor. In this case, Amended Defendants actions in contacting the State of Colorado to report a suspected crime regarding the false service of process certificates in the El Paso District Court cases, where two default judgments had been obtained by the Plaintiff, does not rise to the level of state action or acting under the color of state authority. Additionally, the Amended Defendants' cooperation with the State of Colorado by communicating with Investigator Montoya does not rise to the level of state action or acts under the color of state authority. 8. Plaintiff has alleged that the Amended Defendants were in a conspiracy with Investigator Montoya to establish state action. Such is not the case. In Scott v. Hern, et. al, 216 F.3d 897, 2000 CJ C.A.R. 3056 (10th Cir. 2000), the court stated ruled that a conspiracy does not exist where under similar circumstances a plaintiff alleged that a conspiracy existed between a state actor and a private individual to create the indicia of state action where none existed. In Scott v. Hern, the court analogized that "When a plaintiff in a § 1983 action attempts to assert the necessary 'state action' by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are

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insufficient; the pleadings must specifically present facts tending to show agreement and concerted action." See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (citing Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983)). Additionally, the court in Scott v. Hern, held that heightened pleading requirements regarding § 1983 claims alleging a conspiracy between private individuals and state officials apply even after Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), in which the Supreme Court declined to apply a heightened pleading standard to § 1983 claims against municipalities. See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir.1998). In this case, Plaintiff has alleged no facts that would lead a fact finder to reasonably believe that a conspiracy existed between the Amended Defendants and Investigator Montoya to violate the Plaintiff's Civil Rights. COURT AUTHORITY TO DISMISS UNDER 29 U.S.C. 1915(c) 9. Section 1915(d) of Title 28 authorizes a district court to dismiss a forma pauperis case if the court is "satisfied that the action is frivolous or malicious. Green v. Seymour, 59 F.3d 1073, 32 Fed.R.Serv.3d 470, (10th Cir. 1995). A complaint "is frivolous where it lacks an arguable basis either in fact or law." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). 10. This provision "accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly

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baseless.... Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar." Green v. Seymour, 59 F.3d 1073, 32 Fed.R.Serv.3d 470, (10th Cir. 1995), citing Neitzke, at 327-28, 109 S.Ct. at 1832- 33. Under this provision "frivolousness is a decision entrusted to the discretion of the court entertaining the in forma pauperis petition" and "a § 1915(d) dismissal is properly reviewed for an abuse of that discretion." Denton v. Hernandez, 504 U.S. 25, 33-34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). 11. In Green v. Seymour, 59 F.3d 1073, 32 Fed.R.Serv.3d 470, (10th Cir. 1995), the court held that the trial court did not abuse its discretion in dismissing the Plaintiff's complaint based on the trial court's determination that the complaint was frivolous because the Plaintiff had alleged "no competent facts to support his claim of a conspiracy, nor [did] he allege any competent facts to support his claims of racial discrimination or a retaliatory animus on the part of Defendants." 12. Further, in Green v. Seymour, 59 F.3d 1073, 32 Fed.R.Serv.3d 470, (10th Cir. 1995), the court held that the plaintiff failed to set forth any facts in his complaint supporting his conspiracy claim. Likewise, Plaintiff in this case has failed to allege any facts that would lead a fact finder to determine that the Amended Defendants acted in a conspiracy with Inspector Montoya to violate his Civil Rights. As such, this court has the power to dismiss the Plaintiff's complaint as frivolous and groundless.

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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 31st day of October, 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 31st day of October, 2006, I electronically fined the forgoing 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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