Free Motion to Stay - District Court of Colorado - Colorado

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

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Filed 08/22/2006

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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, R. LYNN KEENER, ROBERT SCRANTON, and ESTATE OF OPAL WILSON, In their individual and official capacities, Defendants. ______________________________________________________________________________ DEFENDANT MONTOYA'S MOTION TO STAY BRIEFING ON PLAINTIFF'S VERIFIED MOTION FOR SUMMARY JUDGMENT PENDING DETERMINATION OF DEFENDANT'S QUALIFIED IMMUNITY ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Hall & Evans, L.L.C., and Awilda R. Marquez, hereby moves for a stay of all briefing on Plaintiff's Verified Motion for Summary Judgment Re: Defendant James A. Montoya, and as grounds therefor, states as follows: In his First Amended and Supplemented Prisoner Complaint, pro se Plaintiff Patrick Hawkinson brings an action pursuant to 42 U.S.C. § 1983 against James A. Montoya, a former employee of the Colorado Department of Corrections, R. Lynn Keener, the Representative of the Estate of Opal Wilson, Robert Scranton, the attorney for the Estate of Opal Wilson, and the Estate of Opal Wilson itself, all in their individual and official capacities. Defendant Montoya filed a Motion to Dismiss Plaintiff's First Amended and Supplemented Complaint on June 30,

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2006, which asserts, among other defenses, the affirmative defense of qualified immunity from Plaintiff's § 1983 claims. Defendant Montoya respectfully requests this Court to stay briefing on Plaintiff's Verified Motion for Summary Judgment Re: Defendant James A. Montoya pending the determination of Defendant Montoya's entitlement to qualified immunity from Plaintiff's 42 U.S.C. § 1983 claims raised in Defendant Montoya's Motion to Dismiss for two reasons. First, when public officials assert the affirmative defense of qualified immunity from a 42 U.S.C. § 1983 claim, they should not be required to withstand the burdens of continued litigation until the threshold question of immunity is resolved. Second, discovery necessary for a proper response to Plaintiff's Verified Motion for Summary Judgment would subject Defendant Montoya to the burden of continued litigation. I. Qualified immunity entitles a defendant to avoid trial and the burdens of pre-trial proceedings Defendant Montoya is entitled to qualified immunity from Plaintiff's claims and asserted the affirmative defense in his Motion to Dismiss Plaintiff's First Amended and Supplemented Prisoner Complaint pursuant to Fed. R. Civ. P. 12(b)(6). See Behrens v. Pellitier, 516 U.S. 299, 300-305 (1996). The assertion of qualified immunity as a defense entitles Defendant Montoya to avoid further litigation proceedings until a decision on the defense is rendered. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Moreover, an adverse decision on qualified immunity by a district court may be appealed on an interlocutory basis pursuant to the collateral order doctrine. See Johnson v. Fankell, 520 U.S. 911, 915 (1997). In Mitchell, the Supreme Court revisited its decision regarding qualified immunity in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and emphasized that until the legal issue of qualified

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immunity is resolved, public officials are to be relieved of the burdens and costs of trial and related litigation: ... the Harlow Court refashioned the qualified immunity doctrine in such a way as to "permit the resolution of many insubstantial claims on summary judgment" and to avoid "[subjecting] government officials either to the costs of trial or to the burdens of broad-reaching discovery" in cases where the legal norms the officials are alleged to have violated were not clearly established at the time. Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts. Harlow thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. Mitchell, 472 U.S. at 526 (internal citations omitted). Since Mitchell, the Supreme Court has stressed the "importance of resolving immunity questions at the earliest possible stage in the litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (collecting cases). "Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 197 (2001). Following this precedent, the Tenth Circuit found qualified immunity to be an entitlement to avoid trial, Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988), and the burdens of pre-trial discovery, Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992). Counsel is aware of no Supreme Court or Tenth Circuit decision in conflict with the precedents on this particular issue. In addition, Defendant Montoya has asserted, in his official capacity, the defense of immunity under the Eleventh Amendment immunity. This claim to fundamental constitutional

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protection will be lost if litigation proceeds past the stage of a motion to dismiss without a full analysis of the court's jurisdiction. See Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-44 (1993). II. Further discovery to respond to Plaintiff's Motion for Summary Judgment would expose Defendant Montoya to the burden of litigation On June 30, 2006, Defendant Montoya filed a Motion to Stay Pretrial Proceedings Pending Decision on his Motion to Dismiss Plaintiff's First Amended and Supplemented Complaint. The Court granted the Motion on July 18, 2006. Prior to the stay of discovery, Plaintiff served Interrogatories and Requests for Admissions to Defendant Montoya, and Defendant Montoya responded thereto on June 28, 2006. In addition, Defendant Montoya attempted to depose Plaintiff, but the deposition was cancelled because Plaintiff advised he had no intention to answer any questions relating to the facts underlying his claims. No other discovery has taken place in this matter. Allowing briefing on Plaintiff's Verified Motion for Summary Judgment would require further discovery. Yet no further discovery is necessary to support Defendant Montoya's

Motion to Dismiss. A defendant can challenge the complaint under Fed. R. Civ. P. 12(b)(6) on the ground that he or she is entitled to qualified immunity because the pleaded facts fail to show that his or her conduct violated clearly established law of which a reasonable person would have known. Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988). Discovery should not be allowed until the court resolves the threshold question whether the law was clearly established at the time the allegedly unlawful action occurred. Id. The court must first determine whether the actions defendants allegedly took are "actions that a reasonable [person] could have believed lawful." Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). If

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the actions are those that a reasonable person could have believed were lawful, defendants are entitled to dismissal before discovery. If the actions are not those that a reasonable person could have believed were lawful, then discovery may be necessary before a motion for summary judgment on qualified immunity grounds can be resolved. Mitchell, 472 U.S. at 526. Defendant Montoya demonstrated in his Motion to Dismiss, and the undisputed facts show, that the actions attributable to him with regard to Plaintiff were not taken in retaliation, but were the usual, customary and proper actions to take when a prisoner is uncovered to be perpetrating a fraud. Indeed, Plaintiff was convicted for the fraud. Fraud is not constitutionally protected conduct that may precipitate alleged retaliation. See Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005). III. D.C. Colo. L. Civ. R. 7.1(A) certification Pursuant to D.C. Colo. L. Civ. R. 7.1(A), the undersigned counsel could not confer with Plaintiff, who is a prisoner proceeding pro se, regarding the relief requested in this Motion due to the lack of ready availability of telephone access to Plaintiff. Due to the time constraints associated with filing this Motion in a timely fashion, the undersigned was unable to communicate with Plaintiff regarding the relief requested herein by mail prior to filing this Motion. IV. Conclusion For the foregoing reasons, Defendant Montoya requests the Court to stay briefing on Plaintiff's Second Verified Motion for Summary Judgment pending the resolution of his entitlement to qualified immunity.

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Dated this 22nd 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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Case 1:04-cv-01271-EWN-BNB

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on the 22nd day of August, 2006, I mailed a true and correct copy of the foregoing DEFENDANTS' MOTION TO STAY BRIEFING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND OTHER PROCEEDINGS PENDING QUALIFIED IMMUNITY DETERMINATION, 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

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