Free Motion to Stay - District Court of Colorado - Colorado

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

Document 148

Filed 06/30/2006

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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 MOTION TO STAY PRETRIAL PROCEEDINGS PENDING DECISION ON HIS MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED AND SUPPLEMENTED PRISONER COMPLAINT ______________________________________________________________________________ Defendant James A. Montoya, by and through his counsel, Awilda R. Marquez, Esq., and Hall & Evans, L.L.C., moves this Court to stay proceedings in this case pending the Court's decision on his immunities to this suit, and as grounds therefor, state as follows: I. Certification of Compliance with D.C.COLO.LCivR 7.1 Plaintiff is a prisoner proceeding pro se who is incarcerated in Arkansas Valley Correctional Facility. Due to (1) the filing of Plaintiff's First Amended and Supplemented Prisoner Complaint on June 28, 2006, (2) Defendant filing of his Motion to Dismiss said Complaint on June 30, 2006, (3) an upcoming deadline of July 10, 2006, for pending discovery, and (4) the extended absence of Defendant's counsel for medical leave starting June 30, 2006, and lasting until at least August 1, 2006, there is insufficient time to write to Mr. Hawkinson to

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

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confer regarding his position on this request for stay and wait for his response through the mail before counsel commences the extended leave. As a result, Plaintiff's position on this Motion is unknown. II. Schedule of Pretrial Proceedings and Immunities Claimed by Defendant Montoya Discovery has begun in this case. Plaintiff has filed Request for Admissions to

Defendant Montoya and Requests for Answers to Interrogatories to Defendant Montoya. Defendant Montoya responded to the Request for Admissions on June 29, 2006. The Answers to Interrogatories are due July 10, 2006. Defendant Montoya attempted to depose Plaintiff but was unsuccessful. See Plaintiff's Motion for Protective Order. Defendant Montoya has not yet issued other discovery requests to Plaintiff. According to the Scheduling Order entered by this Court, discovery must be completed by September 8, 2006. In the meantime, Plaintiff filed a First Amended and Supplemented Prisoner Complaint that eliminates two of Plaintiff's three claims against Defendant Montoya, and eliminates the sole claim against Defendant Borden. Defendant Montoya filed contemporaneously herewith a

Motion to Dismiss First Amended and Supplemented Prisoner Complaint on June 29, 2006, asserting Eleventh Amendment immunity and qualified immunity. Defendant Montoya has raised immunities from suit and from liability that entitle him to avoid pretrial proceedings, including discovery and disclosures, pending a final determination on their immunity. III. Immunity Under the Eleventh Amendment Provides Protection From Litigation A motion to dismiss raising constitutional immunity such as the Eleventh Amendment immunity raised by Defendant Montoya involves a claim to fundamental constitutional protection that will be lost if litigation proceeds past the motion stage without a full analysis of

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

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the court's jurisdiction. See Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-44 (1993). Actions that may be taken by a court prior to resolution of an immunity issue that implicate the jurisdiction of the court over a defendant are void. Stewart v. Donges, 979 F.2d 179, 182 (10th Cir. 1992). IV. Qualified Immunity Qualified immunity shields Defendant Montoya from the burden of discovery and trial as well as liability. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Workman v. Jordan, 958 F.2d 332, 335 (10th Cir. 1992). Qualified immunity entitles Defendant Montoya to

immunity from suit rather than a mere defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The U.S. Supreme Court has stated that: Harlow and Mitchell make clear that the defense is meant to give government officials a right, not merely to avoid 'standing trial, but also to avoid the burdens of 'such pretrial matters as discovery ..., as '[i]nquiries of this kind can be peculiarly disruptive of effective government. Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (emphasis in the original) (citing Mitchell, supra). V. Conclusion Because Defendant Montoya's Motion to Dismiss First Amended and Supplemented Prisoner Complaint was filed contemporaneously herewith, this Court of course has not ruled on his claims to immunity. Pending a final determination on his immunity claims, Defendant Montoya is entitled to avoid the burdens of pretrial matters with the exception of discovery limited to his entitlement to immunity. Behrens, supra. Accordingly, Defendant Montoya requests that, with the exception of discovery limited to his entitlement to immunity, the Court

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

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stay all pretrial proceedings, including pending discovery requests, until the final determination on his claims to immunity. Dated this 30th day of June, 2006. Respectfully submitted,

s/ Awilda R. Marquez__________ Awilda R. Marquez, Esquire Hall & Evans, L.L.C. 1125 - 17th Street, Suite 600 Denver, CO 80202 Telephone: 303-628-3367 Fax: 303-628-3368 E-Mail: [email protected] ATTORNEYS FOR DEFENDANT MONTOYA

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

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 30th day of June, 2006, I electronically filed the foregoing DEFENDANT MONTOYA'S MOTION TO STAY PRETRIAL PROCEEDINGS PENDING DECISION ON HIS MOTION TO DISMISS PLAINTIFF'S 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/ Leslie Grauberger, Secretary_______ Awilda R. Marquez, 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]

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