Free Supplement/Amendment - District Court of Colorado - Colorado

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

Document 201

Filed 09/08/2006

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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 SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED AND SUPPLEMENTED PRISONER COMPLAINT ______________________________________________________________________________ Defendant James A. Montoya ("Montoya"), by and through his counsel, Awilda R. Marquez, Esquire, of Hall & Evans, L.L.C., pursuant to D.C.COLO.LCivR 7.1(E), hereby submits supplemental authority in support his Motion to Dismiss First Amended and Supplemented Prisoner Complaint as follows: NO ACTUAL INJURY FROM ALLEGED LACK OF ACCESS TO COURTS "The First Amendment provides no protection for knowingly fraudulent or frivolous claims. `The first amendment interests involved in private litigation . . . are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims.'" United States v. Ambort, 405 F.3d 1109, 1117 (10th Cir. 2005) (quoting Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983)).

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

Document 201

Filed 09/08/2006

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NO PROTECTED INTEREST SUFFICIENT TO STATE RETALIATION CLAIM The function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted. Villalpando v. Denver Health & Hosp. Auth., 65 Fed. Appx. 683, 686 (10th Cir. 2003) (citation omitted). "[S]ham litigation by definition does not involve a bona fide grievance, ... [and] it does not come within the First Amendment right to petition." Bill Johnson's Restaurants, Inc. v NLRB, 461 U.S. 731, 740-741 (1983). "The first amendment interests involved in private litigation -- compensation for violated rights and interests, the psychological benefits of vindication, public airing of disputed facts -- are not advanced when the litigation is based on intentional falsehoods or on knowingly frivolous claims. Furthermore, since sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition." Id., at 743; see also In re Independent Serv. Orgs. Antitrust Litig., 964 F. Supp. 1479, 1484 (D.Kan. 1997) (discussing the sham exception under the Noerr-Pennington doctrine, noting that an infringement suit that is objectively baseless is immune from antitrust liability); United States v. Barker, 942 F.2d 585, 589-590 (9th Cir. 1991) (There is simply no constitutional right to file a false claim. This rule poses no conflict with the constitutional right legitimately to petition the government for the redress of grievances. [Defendant's] claims, filed with the knowledge that they were false, are not protected by the First Amendment); United States v. Cueto, 151 F.3d 620, 634 (7th Cir. 1998) (Just as false statements are not immunized by the First Amendment, meritless litigation based on false accusations and criminal intentions does

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

Document 201

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not fall within the scope of protected speech and is not immunized by the First Amendment right to petition.) Dated this 8th day of September, 2006. Respectfully submitted,

s/ Awilda R. Marquez___ Awilda R. Marquez, Esq. Edmund M. Kennedy, Esq. Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 [email protected] [email protected] ATTORNEYS FOR DEFENDANT MONTOYA

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

Document 201

Filed 09/08/2006

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 8th day of September, 2006, I electronically filed the foregoing DEFENDANT MONTOYA'S SUPPLEMENTAL AUTHORITY IN SUPPORT OF HIS MOTION TO DISMISS FIRST AMENDED AND SUPPLEMENTED PRISONER COMPLAINT 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 non-participant's name: VIA U.S. MAIL: 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 Swanson, Secretary_______

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