Free Answer to Amended Complaint - District Court of Colorado - Colorado

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

Document 174

Filed 08/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01271-EWN-BMB PATRICK M. HAWKINSON, Plaintiff, v. JAMES A. MONTOYA R. LYNN KEENER ROBERT SCRANTON, in their individual and official capacities, and ESTATE OF OPAL WILSON Defendants. ______________________________________________________________________________ ANSWER ______________________________________________________________________________ In answer to the Plaintiff's, Amended Complaint, R. Lynn Keener, individually, Robert Scranton, individually and the Estate of Opal Wilson by the Personal Representative, R. Lynn Keener, ("Amended Defendants") admit, deny, and allege: CLAIM ONE. 1. Amended Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 26 of plaintiff's Answer regarding the actions or acts of Defendant Montoya. Defendant Montoya is an employee of the State of Colorado. Amended Defendants are private individuals who have no nexis or connection with the State of Colorado, other than being citizens of said State of Colorado and the State of Texas.

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

Document 174

Filed 08/04/2006

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Amended Defendants deny the plaintiff's allegations contained in Paragraph 26 regarding actions or acts denying the Plaintiff access to the court. Plaintiff clearly had access to the court in the matters referenced in that plaintiff obtained, albeit by fraud upon the court, default judgments against Opal Wilson, individually. CLAIM TWO

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Amended Defendants deny the allegations in Paragraph 27 of defendant's Complaint. Amended Defendants have no nexis or connection with Defendant Montoya who is an employee of the State of Colorado. VII. AFFIRMATIVE DEFENSES Amended Defendants assert the following affirmative defenses to the Complaint: First Affirmative Defense The Plaintiff fails to raise a federal question. Amended Defendants are not employees or

agents of the State of Colorado or the U.S. Federal Government; rather, Amended Defendants are private citizens. Therefore, even if, for the sake of argument, the Amended Defendants were deemed to be State employees or agents, Section 1983 provides a federal forum to remedy many deprivations of civil liberties, it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity. Additionally, as iterated above, the Amended Defendants are not state actors under either theory, the State of Colorado or U.S. Federal.

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

Document 174

Filed 08/04/2006

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Second Affirmative Defense The Plaintiff makes allegations that fail to meet the requirement under 42 U.S.C. that the conduct complained of was committed by a person acting under color of state law. In this case, none of the Amended Defendants are state actors. Third Affirmative Defense The Amended Defendants took no actions, involving conduct which deprived the Plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Fourth Affirmative Defense Plaintiff has failed to plead any facts that would provide evidence that meet the required standard necessary to allege a Section 1983 claim. Such standard is met only if the Plaintiff alleges that persons operating under color of state law performed specific conduct which violated the plaintiff's rights. Plaintiff has failed to meet said standard of proof.

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

Document 174

Filed 08/04/2006

Page 4 of 4