Free Reply to 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, in his individual and official capacities, R. LYNN KEENER, ROBERT SCRANTON, and ESTATE OF OPAL WILSON, Defendants. ______________________________________________________________________________ DEFENDANT MONTOYA'S REPLY IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED AND SUPPLEMENTED PRISONER COMPLAINT ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Awilda R. Marquez, Esquire, of Hall & Evans, L.L.C., submits this Reply in Support of Motion to Dismiss Plaintiff's First Amended and Supplemented Prisoner Complaint, and as grounds therefor, states as follows: I. INTRODUCTION

Plaintiff, Patrick M. Hawkinson, a pro se prisoner incarcerated by the Colorado Department of Corrections ("CDOC") at Arkansas Valley Correctional Facility ("AVCF"), filed fraudulent returns of service in two civil cases in state district court against a woman and obtained a default judgment against her in amounts well over $75,000.00. The state court later determined the default judgments were fraudulently obtained after Defendant James A. Montoya, an investigator with the CDOC Inspector General's Office, filed an affidavit regarding his

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investigation of Plaintiff's activities in the matter. The state court then vacated the judgments and dismissed both of Plaintiff's civil actions. Following the dismissal of the civil cases, Plaintiff was criminally prosecuted for attempted theft and forgery/simulation/impersonation with regard to his actions against the deceased woman's estate, and as a habitual criminal, was sentenced to 24 years in prison. Plaintiff appealed the conviction which is currently pending before the Colorado Court of Appeals in case number 05CA1168. On May 26, 2006, Plaintiff moved for leave to file a First Amended and Supplemented Prisoner Complaint, upon which Inspector Montoya took no position. The Court granted the Motion and Plaintiff's First Amended and Supplemented Prisoner Complaint ("Amended Complaint") was filed on June 28, 2006. In the Amended Complaint, Plaintiff's only claim against Investigator Montoya is made pursuant to 42 U.S.C. § 1983 for alleged retaliation against Plaintiff in violation of his right of access to the court with regard to the two civil judgments obtained by Plaintiff against the estate of Opal Wilson. On June 30, 2006, Inspector Montoya filed a Motion to Dismiss Plaintiff's First Amended and Supplemented Prisoner Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ("Motion to Dismiss"). Inspector Montoya raised four separate grounds for dismissal: (1)

Inspector Montoya in his individual capacity is entitled to qualified immunity for Plaintiff's failure to show an actual injury, and for failure to show a violation of his constitutional rights from the various retaliatory actions alleged against him; (2) Plaintiff can show no physical injury that meets the requirements of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C.§ 1997e(a); (3) Inspector Montoya in his official capacity is not a "person" under 42 U.S.C. § 1983; and (4)

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this Court lacks subject matter jurisdiction of Inspector Montoya in his official capacity pursuant to the Eleventh Amendment of the United States Constitution. On July 10, 2006, Plaintiff filed a Response to Inspector Montoya's Motion to Dismiss in which he asserts, in conclusory fashion, that he suffered an actual injury in relation to his two civil actions. Plaintiff fails to present any argument pertaining to exactly how he suffered an actual injury but merely asserts that he could have defeated the Motions to Set Aside the Default Judgments without explanation. Plaintiff also asserts that he needn't establish a physical injury in this action because he does not seek emotional damages and that Inspector Montoya is not entitled to any form of immunity, nor does this Court lack subject matter jurisdiction over Inspector Montoya in his official capacity pursuant to the Eleventh Amendment. For reasons stated below, as well as those articulated in the Motion to Dismiss, Inspector Montoya now respectfully moves this Court to dismiss all claims against him as a matter of law. II. ARGUMENT

PLAINTIFF FAILS TO REFUTE INSPECTOR MONTOYA'S ENTITLEMENT TO QUALIFIED IMMUNITY As discussed in the Motion to Dismiss, Plaintiff asserts one claim against Inspector Montoya for "retaliation for Plaintiff's civil court actions and civil court judgments totaling $70,000, against Opal Wilson, in violation of Plaintiff's First Amendment right of access to the court." [Amended Complaint, p. 7, see also Response to Motion to Dismiss, at 10, n.2 ("Plaintiff only asserts a retaliatory claim.")]. Government officials performing discretionary functions, such as those actions that form the basis of Plaintiff's claims here, will not be held liable for their conduct unless their actions violate "clearly established statutory or constitutional rights of which

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a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The purpose of qualified immunity is to shield government employees from the burdens associated with trial, which include distraction from governmental responsibilities, the inhibiting of discretionary decision-making and the disruptive effects of discovery. Id. Additionally, only if a constitutional or statutory violation is established by Plaintiff does the court look to whether the law was clearly established. Conn v. Gabbert, 526 U.S. 286, 29093 (1999). Inspector Montoya is entitled to dismissal of the claims against him because Plaintiff fails to show a violation of his constitutional right to access to the courts. More specifically, Plaintiff fails to show any actual injury from the alleged actions of Inspector Montoya that allegedly denied him access to courts. Plaintiff Fails to Show Any Actual Injury. As discussed in the Motion to Dismiss, to prevail on a claim for the unconstitutional denial of legal access to the courts, an inmate must have suffered some actual injury from the denial of access. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996). "[A]n inmate must allege and prove prejudice arising from the defendants' actions." Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (emphasis added); see also Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) ("an inmate must satisfy the standing requirement of `actual injury' by showing that the denial of legal resources hindered the prisoner's efforts to pursue a nonfrivolous claim."). This requirement is a constitutional prerequisite. Lewis, 518 U.S. at 351. The injury

requirement "is not satisfied by just any type of frustrated legal claim." Id. at 355. In the absence of such a showing of actual injury, a claim of unconstitutional denial of access to the courts cannot survive. Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996) (a plaintiff must show

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that any denial or delay of access to the court prejudiced him in pursuing litigation, i.e. caused an actual injury). Plaintiff alleges an actual injury only with respect to the granting of the Motions to Set Aside Default Judgments and the dismissal of said actions. [Amended Complaint, p. 6; see also Response to Motion to Dismiss, at 2-5 (claiming that the injury was the granting of the Motions to Set Aside and the dismissal of the civil actions)]. The dismissal of his two judgments upon evidence that the default judgments were obtained through fraudulent notices of service of process simply does not qualify as an actual injury sufficient to support a constitutional claim of denial of access to the courts. Outside Plaintiff's conclusory assertions that, if not for Inspector Montoya's conduct, he could have defeated the Motions to Set Aside Default Judgments, Plaintiff presents no factual support that he suffered an actual injury due to Inspector Montoya's conduct. See Drake v. Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir. 1986) (district court properly dismissed action because pro se litigant's allegations were conclusory and unsupported by underlying facts). In fact, Plaintiff's criminal conviction for attempted theft and forgery/simulation/impersonation with regard to his actions against the deceased woman's estate in the civil matters supports a conclusion that Plaintiff could not have succeeded in defeating the Motions to Set Aside Default Judgments. Evidence obtained and testimony from Inspector Montoya were used in the criminal proceedings and played a major role in Plaintiff's conviction. As such, under Lewis, because Plaintiff fails to show any actual injury from an alleged constitutional deprivation of his right to access to courts, he does not state

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a claim for violation of his constitutional right to access to the courts, and Inspector Montoya is entitled to qualified immunity from Plaintiff's claim of retaliatory denial of access to the courts. Plaintiff's failure to present any factual support for his claim that, but for the actions of Inspector Montoya, he would have been able to defeat the Motions to Set Aside Default Judgments, Plaintiff, as a matter of law, fails to establish any injury as the result of Inspector Montoya's alleged conduct. III. CONCLUSION

For all the foregoing reasons, as well as those articulated in Defendant Montoya's Motion to Dismiss, Defendant respectfully requests this Court enter an Order dismissing Plaintiff's Amended Complaint in its entirety with prejudice, as well as providing such other relief as the Court finds just and appropriate. Dated this 31st day of July 2006. Respectfully submitted, s/ Edmund M. Kennedy___ 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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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 31st day of July 2006, I electronically filed the foregoing DEFENDANT MONTOYA'S REPLY IN SUPPORT OF 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

s/ Suzanne Swanson, Secretary_______ Awilda R. Marquez, Esq. Edmund M. Kennedy, Esq. Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202-2052 Phone No.: 303-628-3300 Fax No.: 303-628-4227 [email protected] [email protected]

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