Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 09/06/2006

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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 FOR COURT ORDER PERMITTING PLAINTIFF ATTORNEY CALLS ______________________________________________________________________________ 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 for Court Order Permitting Plaintiff Attorney Calls ("Motion"), states as follows: In his Motion, Plaintiff asks the Court to order Defendant Montoya "to lift his selfimposed restriction on Plaintiff's telephone privileges." Motion, at p. 1. Defendant Montoya

respectfully requests the Court to deny Plaintiff's Motion because (1) Defendant Montoya did not impose the restriction and has no authority to order or lift the suspension of Plaintiff's telephone privileges, and (2) Plaintiff's ability to communicate with his attorney(s) of record has never been restricted during the time his telephone privileges have been suspended.

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I.

Defendant Montoya did not impose, and has no authority to lift, the suspension of Plaintiff's telephone privileges As an investigator in the Colorado Department of Corrections (CDOC) Office of the

Inspector General, Defendant Montoya does not have authority to impose telephone restrictions. Such authority is only given to the Warden of each CDOC facility or to the Colorado Inmate Phone System ("CIPS") Coordinator. CDOC Administrative Regulation 850-12 ("Telephone regulations for Offenders"), copy attached as Exhibit A. AR 850-12 provides that the CIPS coordinator may suspend telephone privileges for 30 days pending further investigation upon suspicion that an inmate is abusing the phone system. Id. at (P)(2). The administrative head of each facility may impose "sanctions to include permanent suspension of telephone privileges independent of COPD [Code of Penal Discipline] charges, if the abuse of the privilege so warrants." Id. Nowhere does the regulation authorize an Inspector General investigator to restrict an inmate's telephone privileges. Contrary to Plaintiff's allegation in the Motion, Defendant Montoya did not suspend Plaintiff's telephone privileges. Nor were Plaintiff's telephone privileges suspended "to prevent Plaintiff from communicating with attorneys of record in the civil cases." Upon Defendant Montoya's investigation of Plaintiff's involvement in a fraudulent scheme to obtain judgments against Opal Wilson, and upon learning that Plaintiff was using the inmate telephone system to perpetuate the fraud by initiating execution of the fraudulently obtained judgments against Ms. Wilson,1 Defendant Montoya requested that the Warden of Plaintiff's prison facility, then Bent County Correctional Facility ("BCCF"), consider suspending Plaintiff's telephone privileges.

Plaintiff was convicted of attempted theft and forgery/simulation/impersonation as a result of these actions in Bent County District Court Case No. 2004 CR 00011and was sentenced to an additional 24 years of prison.

1

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Defendant Montoya did not suspend the privileges and cannot order the Warden to undertake such an action. Warden Leyba suspended Plaintiff's phone privileges "because of Plaintiff's alleged use of the phone to pursue the filing of false liens. The suspension will remain in effective [sic] pending the outcome of the investigation and/or criminal charges." See Step 3 Grievance letter, Exhibit 6 to Plaintiff's First Amended and Supplemented Prisoner Complaint, copy attached as Exhibit B. Under CDOC AR 850-12 (P) (2), the Warden of BCCF imposed the suspension. In addition, Defendant Montoya learned from Robert Scranton, attorney for the Estate of Opal Wilson, that Plaintiff was calling Mr. Scranton and demanding payment of the fraudulently obtained judgments. That is, Plaintiff fraudulently included Robert Scranton's name on the CIPS list for legal calls as if Mr. Scranton were his own attorney of record, even though Robert Scranton was not Plaintiff's attorney, but was, and still is, the attorney for the Estate of Opal Wilson. Unmonitored legal calls to attorneys on the CIPS list are limited to calls to an inmate's attorney of record, not to any individual who happens to be an attorney. See CDOC AR 850-12 (IV) (L), Exhibit A. Defendant Montoya requested the Warden of BCCF to retain the restriction on Plaintiff's phone privileges "in response to the request of individuals, including an individual listed on the CIPS account, that Plaintiff be prohibited from contacting them." See Defendant Montoya's Responses to Plaintiff's Request for Admissions, p. 14, page attached as Exhibit C. Warden Leyba extended the restriction on Plaintiff's phone privileges on the ground that Plaintiff "fraudulently obtained legal status (unrecorded/unmonitored calls) for Attorney Robert Scranton, BAR #30368, of Colorado Springs." Warden Leyba directed CIPS to remove Robert Scranton from the CIPS list for legal calls to inmate attorneys of record. See Memorandum from

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Warden Ron Leyba to Patrick Hawkinson dated November 30, 2005, regarding Inmate Phone Account, Exhibit EE to Plaintiff's Requests for Admissions, copy attached as Exhibit D. Because Defendant Montoya is without authority to impose or lift the suspension of Plaintiff's telephone privileges, and did not impose the restrictions on Plaintiff's telephone privileges, the Plaintiff's Motion must be denied. II. Plaintiff's ability to communicate with his attorney(s) of record has never been restricted Plaintiff's allegation that "the CIPS restriction prevents Plaintiff from calling anyone on his CIPS account" is only partially correct. Inmates can always communicate with their counsel of record in writing or by arranging attorney visits. Moreover, inmates can call their attorney of record on an emergency basis upon notification of an imminent, previously unknown, court deadline within ten days or less. See CDOC AR 850-12 (IV) (L) (4). Prison inmates have no right to unlimited telephone use. Robinson v. Gunja, 92 Fed. Appx. 624, 627-628 (10th Cir. 2004) (citing Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989)). Instead, a prisoner's right to telephone access is "subject to rational limitations in the face of legitimate security interests of the penal institution." Id. (citing Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)). Plaintiff has never been prevented from

communicating in writing with, or arranging personal visits by, his attorney(s) of record. Plaintiff claims he wishes to call attorneys such as the undersigned counsel, Robert Scranton and others who are not his attorneys of record. Because those attorneys are not his attorneys of record, telephone calls to them are restricted during the suspension of his phone privileges. Nothing, however, prevents Plaintiff from communicating with anyone, including attorneys who are not his attorney(s) of record, in writing or through personal visits.

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III.

Conclusion Because Defendant Montoya has no authority to lift the suspension of Plaintiff's

telephone privileges and is not a proper party to this Motion to compel, and because Plaintiff's ability to communicate with his attorney(s) of record has never been restricted during the time his telephone privileges have been suspended, Defendant Montoya respectfully requests that Plaintiff's Motion be denied. Dated this 6th day of September, 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

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on the 6th day of September, 2006, I mailed a true and correct copy of the foregoing DEFENDANT MONTOYA'S RESPONSE TO PLAINTIFF'S MOTION FOR COURT ORDER PERMITTING PLAINTIFF ATTORNEY CALLS, 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 Awilda R. Marquez 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