Free 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-1271-EWN-BNB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA, R. LYNN KEENER, ROBERT SCRANTON, and ESTATE OF OPAL WILSON, In their individual and official capacities, Defendants. ______________________________________________________________________________ DEFENDANT MONTOYA'S RESPONSE TO PLAINTIFF'S SECOND MOTION TO INCLUDE INJUNCTIVE RELIEF IN PRISONER'S CIVIL RIGHT [SIC] COMPLAINT ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Hall & Evans, L.L.C., and Awilda R. Marquez, in response to Plaintiff's Second Motion to Include Injunctive Relief in Prisoner's Civil Right [sic] Complaint, states as follows: In his Second Motion to Include Injunctive Relief, Plaintiff seeks leave to amend the relief sought in his First Amended and Supplemented Prisoner Complaint. Specifically, Plaintiff seeks relief as follows: I. II. III. IV. V. VI. Declaratory Judgment against each Defendant for violating Plaintiff's Constitutional Rights; Award of compensatory damages; Award of nominal damages; Award of punitive damages; Award of all fees, costs, and expenses (including Attorney fees, costs and expenses); Injunctive relief as follows:

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

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VII.

(a) That anytime [sic] a prisoner's legal papers are needed to be seized (1) the CDOC [Colorado Department of Corrections] staff member shall obtain a warrant from a court of law, based on probable cause to seize specific and i entified legal documents and (2) the siezed [sic] legal d documents shall be photocopied and the originals shall be returned to the prisoner within 24 hours. (b) That anytime [sic] a prisoner's legal books are seized by any CDOC staff member the legal book shall be photocopied and the original book shall be returned to the prisoner with [sic] 24 hours. (c) That anytime [sic] a prisoner's telephone is restricted by any CDOC staff member for investigative purposes, or other reasons, they shall refrain from restricting the prisoner from calling his/her attorney of record. (d) That anytime [sic] any party of a civil matter calls any CDOC staff member regarding any civil proceeding or actions therein the CDOC staff member shall immediately notify that party that "that is a civil matter, please contact the Court, the partys [sic], or any attorney ­ the Department of Corrections does not have the authority or jurisdiction to take complaints of the civil actions before a court of law ­ nor can we give legal advice, thank-you." (e) any other injunctive relief the Court deems necessary to correct CDOC staff conduct as exhibited in this matter. Any other judgments, order, and damages, deemed appropriate by the Court.

The Eleventh Amendment precludes suits against the States in Federal court absent their consent. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). Under Ex parte Young, 209 U.S. 123 (1908), however, suit may be brought for prospective injunctive relief against state officials whose actions violate federal law. Id., at 158. 1 The Ex parte Young doctrine is limited to the vindication of federal rights and will hold state officials responsible only to "the supreme authority of the United States." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, supra, at 160). Federal courts have no jurisdiction to entertain a suit that seeks to require the state official to comply with state law - only allegations of

Retrospective relief, however, is still precluded by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651 (1974).
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violations of federal law are sufficient to come within the Ex parte Young rule. ANR Pipeline Co. v. LaFaver, 150 F.3d 1178, 1188 (10th Cir. 1998). As such, when a plaintiff seeks prospective injunctive relief against a state official that is not based on a violation of federal law, the entire basis for the doctrine of Ex parte Young and Edelman disappears. "When a federal court instructs state officials on how to conform their conduct to state law, this conflicts directly with the principles of federalism that underlie the Eleventh Amendment." Pennhurst, 465 U.S. at 106. Thus, if a request for prospective injunctive relief is not related to a violation of federal law or vindication of federal rights, it is not subject to the Ex parte Young doctrine and does not bar Eleventh Amendment immunity. All of the actions, policies or procedures requested by Plaintiff as prospective injunctive relief do not per se vindicate the violation of any federal rights, do not meet the requirements of the Ex parte Young doctrine, and therefore, do not bar the immunity of Defendant Montoya in his official capacity under the Eleventh Amendment. None of the actions, policies or procedures per se has any basis in the violation of any federal law. Because the requested relief is not available to Plaintiff, Plaintiff's Second Motion to Include Injunctive Relief is futile and should be denied. The Court may exercise its discretion to deny a motion to amend when the proposed amendment is futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); State Distributors, Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984). With regard to the first two requests for prospective injunctive relief, the seizure of a prisoner's legal papers and books when "needed" vindicates no federal rights. Defendant Montoya seized Plaintiff's legal papers and legal books as evidence in his official investigation of an allegation of fraud being committed by Plaintiff while in prison, in the pursuit of his civil

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claims in state court against the Estate of Opal Wilson. Those actions did not per se violate any federal law. On the contrary, Defendant Montoya took those steps in compliance with his statutory duty as a peace officer under Colo. Rev. Stat. § 16-2.5-134 to investigate crimes and enforce the laws of the State of Colorado under the mandate of Colo. Rev. Stat. § 17-1-103.8. The seizure did not prejudice Plaintiff in the prosecution of his lawsuits because Plaintiff had already fraudulently obtained the judgments against Opal Wilson and had commenced collection procedures. See Defendant Montoya's Motion to Dismiss Plaintiff's First Amended and

Supplemented Prisoner Complaint, at pp. 5-6, 14-16. When the Estate of Opal Wilson sought relief from the judgment on the basis of fraud, Plaintiff's counsel filed objections on his behalf, which objections were reviewed and rejected by the Court. After counsel withdrew, Plaintiff filed motions for reconsideration pro se, which were also rejected by the state court. Id. Plaintiff suffered no prejudice in the pursuit of his claims. He merely experienced an adverse decision by the state court on actions for which he was later convicted of fraud. Id; see also Exhibit 18 to Plaintiff's Verified Motion for Summary Judgment re: Defendant James A. Montoya. With regard to the third request for injunctive relief related to restriction of Plaintiff's telephone privileges for using the phone to pursue the filing of false liens, there was no violation of federal law per se because Plaintiff was not prevented from communicating with his attorney of record. See Defendant Montoya's Motion to Dismiss Plaintiff's First Amended and

Supplemented Prisoner Complaint, at pp. 19-20. In his fourth request for prospective injunctive relief, Plaintiff asks that any time a party in a civil case "calls any CDOC staff member regarding any civil proceeding or actions therein," the CDOC staff member must respond with specific referrals and statements of the alleged lack

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of authority of CDOC staff "to take complaints of the civil actions before a court of law." Such a request for relief has no basis in the violation of any federal law per se, but merely seeks to prevent the reporting of possible fraud or other crimes CDOC officials. In Plaintiff's case, the Personal Representative of the Estate of Opal Wilson called CDOC about his suspicion that Plaintiff had committed fraud against the Estate. In response Defendant Montoya initiated an investigation. See Plaintiff's Verified Motion for Summary Judgment, Undisputed Material Fact #1. Defendant Montoya, an investigator with CDOC's Office of Inspector General, is a

Colorado peace officer under Colo. Rev. Stat. § 16-2.5-134, whose authority includes the enforcement of all the laws of the state of Colorado. Plaintiff's request seeks to prevent the reporting of possible crimes to, and the investigation by, a peace officer, thereby obviating the duty imposed on CDOC Inspectors General by Colo. Rev. Stat. § 17-1-103.8(a) to investigate crimes. The fifth request is a "catch-all" request, specifies no particular violation of rights that is being vindicated, and because it cannot be analyzed or refuted, must be denied. For the above reasons, Plaintiff's Second Motion to Include Injunctive Relief in Prisoner's Civil Right [sic] Complaint does not meet the requirements of the Ex parte Young exception to Eleventh Amendment immunity and, because it is futile, should be denied. In addition, Plaintiff's third and fourth requests for prospective injunctive relief are not within the authority of Defendant Montoya to enforce. In his third request, Plaintiff seeks an injunction whenever telephone privileges are restricted "for investigative purposes, or other reasons." Plaintiff's Second Motion to Include Injunctive Relief in Prisoner's Civil Right [sic] Complaint, at p. 2 (emphasis added). In his fourth request, Plaintiff seeks to control the

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responses that CDOC staff must give to individuals who are parties to any civil suit calling by telephone. Id. Defendant Montoya, as an investigator in the Office of the Inspector General, has no connectio n to the restriction of telephone privileges for reasons other than investigative purposes. He has no connection to the procedure for answering incoming telephone calls to any prison facility. Defendant Montoya is not expressly directed to see to the enforcement of all phone privileges or to incoming telephone calls to a prison, whether as a discretionary or ministerial function. Because he is not, in any sense, charged with such responsibilities, an injunction cannot lie against him. See Fitts v. McGhee, 172 U.S. 516, 530 (1899). Without a "close official connection" to the function, "there is no principle upon which" an injunction may lie against him. Ex parte Young, 209 U.S. 123, 156 ­157 (1908). Having no duty at all with regard to the functions, he cannot be properly made party to an injunction as sought by Plaintiff. Id., at 158. For the foregoing reasons, Defendant Montoya requests the Court to deny Second Motion to Include Injunctive Relief in Prisoner's Civil Right [sic] Complaint, and for such other relief as the Court deems appropriate. Dated this 25th day of August, 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 25th day of August, 2006, I mailed a true and correct copy of the foregoing DEFENDANT MONTOYA'S RESPONSE TO PLAINTIFF'S SECOND MOTION TO INCLUDE INJUNCTIVE RELIEF IN PRISONER'S CIVIL RIGHT [SIC] COMPLAINT, 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 Telepho ne: 303-628-3367 Fax: 303-628-3368 E-Mail: [email protected] Attorneys for Defendants

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