Free Response to Motion - District Court of Colorado - Colorado

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

Document 213

Filed 10/05/2006

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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 MOTION TO STRIKE DEFENDANT MONTOYA'S REPLY [DOC. #173] FOR NON-SERVICE AND SUPPLEMENT/AMENDMENT [DOC. #201] AS UNTIMELY AND IMPROPER SERVICE ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Awilda R. Marquez, Esquire, of Hall & Evans, L.L.C., in response to Plaintiff's Motion to Strike Defendant Montoya's Reply [Doc. #173] for Non-Service and Supplement/Amendment [Doc. #201] as Untimely and Improper Service ("Motion"), states as follows: I. Defendant Montoya's Reply [Doc. #173] Plaintiff claims that he was not served a copy of Defendant Montoya's Reply to Response to Defendant's Motion to Dismiss ("Reply"), which was filed on July 31, 2006. As certified on the Reply, and as acknowledged in the Affidavit of Suzanne Swanson attached hereto, Defendant Montoya's counsel mailed the pleading to Plaintiff via United States Mail, postage prepaid, on July 31, 2006. To date, Defendant Montoya's counsel has received no indication from either the U.S. Postal Service or any other source that the mailing was either returned or refused.

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

Document 213

Filed 10/05/2006

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Counsel's first indication that the mailing failed was revealed in Plaintiff's Motion. It is still not clear how the mailing failed and where it failed. There is no evidence that Defendant Montoya did not serve Plaintiff by mailing the Reply through the U.S. mails. If, in fact, Defendant failed to receive the service copy of the Reply at the prison, that fact does not demonstrate that Defendant Montoya failed to serve the Reply by mailing it to him at the prison. There is no basis in the record, therefore, for striking Defendant Montoya's Reply. There is no basis for any sanction whatsoever, including striking the Reply. For example, there has been no violation of Fed. R. Civ. P. 12(f). If Plaintiff did not receive a copy of the Reply, then the appropriate solution is as he proposes in his Motion -- that he be re-served with a copy of the Reply. As such, on October 4, 2006, Defendant Montoya's counsel mailed to Plaintiff another copy of the Reply filed on July 31, 2006. See Affidavit of Suzanne Swanson. Plaintiff has not been prejudiced by the purported failure to receive a copy of the Reply because he would not have had an opportunity to respond to the Reply. Plaintiff proposes in his Motion that the Court grant him an additional 15 days after the re-service of the Reply "to object or otherwise respond [if needed] to the filings," but Plaintiff has established no basis upon which the Court should grant him an opportunity for surreply. D.C.COLO.LCivR 7.1(C) does not provide for a surreply. Plaintiff offers no additional legal arguments that require briefing. The Reply elaborated on the argument that Plaintiff suffered no actual injury. No new argument is raised that might require briefing. For this reason, this Court should neither strike Defendant Montoya's Reply nor grant Plaintiff time for additional briefing on Defendant Montoya's Motion to Dismiss.

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

Document 213

Filed 10/05/2006

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II.

Defendant Montoya's Notice of Supplementary Authority [Doc. #201] Plaintiff also notes in his Motion that he did not receive a copy of Defendant Montoya's

Supplemental Authority in Support of Motion to Dismiss First Amended and Supplemented Prisoner Complaint ("Supplemental Authority"), which was filed on September 8, 2006. Indeed, as indicated on a copy of the U.S. Postal Service's returned mail sticker, the mailing to Plaintiff was returned for "postage due." See copy of Returned Mail receipt, attached as Exhibit A. As noted on the Returned Mail receipt, the U.S. Postal Service mailed the item back to Defendant Montoya's counsel on Friday, September 15, 2006. Counsel received the returned mail on Monday, September 18, 2006. On Tuesday, September 19, 2006, Counsel re-mailed the service copy of the Supplemental Authority to Plaintiff with additional postage. See Exhibit A (with handwritten note of Legal Secretary, Suzanne Swanson). The failure of the mailing to Plaintiff was inadvertent. Although the pleading is only four pages long, the Hall & Evans Mailroom inadvertently misjudged that it required additional postage. Nevertheless, it was re-mailed on September 19, and Plaintiff should have received the re-mailed copy within a week. In fact, as indicated on Exhibit 3 of Plaintiff's Motion, the Supplemental Authority was received by the Arkansas Valley Correctional Facility on September 25, 2006. Plaintiff has not been prejudiced by the failure to receive a copy of the Supplemental Authority until 17 days after its filing. Plaintiff would have had an opportunity to respond to the Supplemental Authority. Supplemental Authority neither requires nor merits a response.

Although D.C.COLO.LCivR 7.1(E) provides for supplemental authority, it does not invite additional argument or response to the submission.

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

Document 213

Filed 10/05/2006

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Moreover, the Supplemental Authority submitted by Defendant Montoya does not raise any new argument. The Reply argued that Plaintiff fails to show actual injury as required by Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) ("an inmate must satisfy the standing requirement of `actual injury' by showing that the denial of legal resources hindered the prisoner's efforts to pursue a nonfrivolous claim."). The additional legal authority supports the argument that the First Amendment does not protect frivolous or fraudulent claims. Defendant Montoya's Motion to Dismiss argued that Plaintiff failed to state a claim for violation of his constitutional rights. As a threshold matter, a prisoner in a retaliation case must prove that the conduct that led to the alleged retaliation was constitutionally protected. Gandy v. Ortiz, 122 Fed. Appx. 421, 422 (10th Cir. 2005) (citing Smith v. Maschner, 899 F.2d 940, 942-45 (10th Cir. 1990) (copy attached as Exhibit B). The additional legal authority supports the argument that the First Amendment does not protect fraudulent access to the courts. Because the failure of the mailing to Plaintiff was inadvertent and did not cause prejudice to Plaintiff, and because the Supplemental Authority was not under a particular deadline and did not raise new arguments, this Court must not strike the Supplemental Authority. III. Conclusion For the foregoing reasons, Defendant Montoya respectfully requests that Plaintiff's Motion be denied.

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

Document 213

Filed 10/05/2006

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Dated this 5th day of October, 2006. Respectfully submitted, s/ Awilda R. Marquez__________ Awilda R. Marquez, Esquire 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 DEFENDANTS CERTIFICATE OF MAILING I HEREBY CERTIFY that on the 5th day of October, 2006, I mailed a true and correct copy of the foregoing DEFENDANT MONTOYA'S RESPONSE TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT MONTOYA'S REPLY [DOC. #173] FOR NON-SERVICE AND SUPPLEMENT/AMENDMENT [DOC. #201] AS UNTIMELY AND IMPROPER SERVICE, correctly addressed, postage prepaid, in the U.S. Mail to the following: Patrick M. Hawkinson Reg. No. 62702 Arkansas Valley Correctional Facility PO Box 1000 Crowley, CO 81034 James A. Montoya c/o Cathie Holst Department of Corrections 2862 South Circle Drive Colorado Springs, CO 80906 Robert J.M. Scranton, Esq. 231 East Vermijo Avenue Colorado Springs, CO 80903 s/ Suzanne N. Swanson, legal secretary Hall & Evans, LLC 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3300

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