Free Motion to Dismiss - District Court of Colorado - Colorado

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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 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 Motion to Dismiss Plaintiff's First Amended and Supplemented Prisoner Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), 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,

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an investigator with the CDOC Inspector General's Office, filed an affidavit regarding his investigation of Plaintiff's activities in the matter. The state court then vacated the judgments and dismissed both of Plaintiff's civil actions. Subsequently, Plaintiff filed this action on

June 21, 2004, claiming that Investigator Montoya violated his constitutional rights by conducting the investigation, seizing his documents relating to the two civil cases, and filing the affidavit with the state court. After Defendants filed their Motion to Dismiss, 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 has appealed the conviction to the Colorado Court of Appeals in case number 05CA1168. The Magistrate Judge recommended that Defendants' Motion to Dismiss be granted. This Court declined to adopt the recommendation. Defendants answered the Prisoner Complaint on April 4, 2006. On May 26, 2006, Plaintiff moved for leave to file a First Amended and

Supplemented Prisoner Complaint, upon which Defendants 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 on Opal Wilson's estate. Plaintiff's claim against Inspector Montoya must be dismissed for four separate reasons: first, Inspector Montoya in his individual capacity is entitled to qualified immunity for Plaintiff's failure to show an actual injury beyond a frustrated civil damages claim, and failure to show a

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violation of his constitutional rights from the various retaliatory actions alleged against Inspector Montoya. Second, Plaintiff can show no physical injury that meets the requirements of the Prison Litigation Reform Act, 42 U.S.C.§ 1997e(a).1 Third, Inspector Montoya in his official capacity is not a "person" under 42 U.S.C. § 1983. Fourth, this Court lacks subject matter jurisdiction for the reason that Inspector Montoya in his official capacity is protected by Eleventh Amendment immunity. II. FACTUAL BACKGROUND

Plaintiff claims that, before his most recent incarceration, he provided business services and sold goods to Opal Wilson in 2002, and that after he was incarcerated, Ms. Wilson failed to pay him for his goods and services. As a result, he filed two lawsuits against Ms. Wilson for breach of contract in El Paso District Court, Cases Nos. 02CV4252 and 03CV858. In both cases, returns of service appeared to show that Ms. Wilson was personally served and, as indicated in Exhibits 2 and 3 to the Amended Complaint, the El Paso District Court granted Plaintiff default judgments totaling $70,000 in both cases, plus interest at 8%, after receiving no response from

Although Plaintiff does not allege he exhausted his administrative remedies in his Amended Complaint as required by the PLRA, investigation indicates he complied with this requirement, and exhaustion of remedies is not raised here by the Defendant.
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Ms. Wilson.

[Final Judgment, El Paso District Court Case No. 02CV4252, attached as

Exhibit A; Final Judgment, El Paso District Court Case No. 03CV858, attached as Exhibit B].2 Plaintiff subsequently put liens on Ms. Wilson's property for the amount he was awarded by the El Paso District Court. After Ms. Wilson passed away on October 21, 2003, Plaintiff obtained an attorney who contacted the estate and demanded payment on the judgments. On January 26, 2004, Defendant Keener, Representative of the Estate of Opal Wilson, contacted Investigator Montoya and solicited his assistance with regard to the two judgments obtained by Plaintiff against the Defendant Estate of Opal Wilson ("Estate"). Investigator Montoya reviewed the court documents and met with Plaintiff regarding the civil judgments against Ms. Wilson and the Estate. Plaintiff alleges that Investigator Montoya said, "If you don't sign over the liens and dismiss the judgments you will be placed in punitive segregation before I [Montoya] leave this building." Plaintiff also alleges that Investigator Montoya said, "I will do everything and anything in this case to prevent you from receiving a dime from the estate including alleging fraud." In the Amended Complaint, Plaintiff alleges that Investigator Montoya "grew visibly irate [sic]" and took a number of actions against him, including placing Plaintiff in punitive segregation for thirty days without a hearing; seizing, reading and keeping all of Plaintiff's legal The Court may consider exhibits attached to Plaintiff's Amended Complaint without converting this Motion to a motion for summary judgment pursuant to Fed. R. Civ. P. 10(c). Interpreting Fed. R. Civ. P. 10(c), the federal courts have concluded that "the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference," for the purposes of a motion to dismiss. International Audiotext Network, Inc. v. AT&T Co., 62 F.3d 69, 71 (2d Cir. 1995) (quoting Cortec. Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992)).
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documents and case files, including Plaintiff's attorney/client communications and law books; transferring Plaintiff to a higher security facility; adding classification points to Plaintiff's custody rating for "Detainer/Pending Charges" when no charges or detainers existed; filing a false and perjurious affidavit in Plaintiff's civil cases against Opal Wilson; causing strife and conflict between Plaintiff and his pastor; reporting slanderous, libelous and misleading misinformation to the Denver Post; "shopping" for a district attorney who would file criminal charges against Plaintiff for his actions in the civil cases against Opal Wilson; and cutting off Plaintiff's phone privileges to prevent Plaintiff from communicating with his attorney in the civil cases against Opal Wilson. [See Plaintiff's First Amended and Supplemented Complaint]. As noted by Plaintiff in his Amended Complaint, on February 13, 2004, Defendants Keener and Estate moved for relief from the final judgments entered against Ms. Wilson pursuant to C.R.C.P. 60(b)(5) alleging that the returns of service in both cases were based "on outright fraud and misrepresentation." [See Motions for Relief from Final (Default) Judgment Pursuant to C.R.C.P. Rule 60(b)(5) filed in Case Nos. 03CV858 and 02CV4252, attached as Exhibits C and D].3
3

Attached to both motions was an affidavit of Investigator Montoya

This Court may consider the Motions for Relief from Final (Default) Judgment,

attached as Exhibits C and D, Orders for Relief from Final (Default) Judgment Pursuant to C.R.C.P. Rule 60(b)(5), attached as Exhibits E and F, Additional Response (Objection to Defendants' Motion to Remove Lien and Motion to Reconsider and Vacate the Court's Order), attached as Exhibit G, and Plaintiff's Motion to Amend Findings and Order, attached as Exhibit H, and orders denying requests for reconsideration, attached as Exhibit I and J, without converting this Motion to Dismiss to a motion for summary judgment pursuant to Fed. R. Civ. P. 10(c). If the plaintiff chooses not to attach documents to his complaint that are referred to in the complaint and are crucial to the plaintiff's claim, the defendant may attach the documents to its motion to dismiss to be considered by the court in determining the sufficiency of plaintiff's allegations. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997).

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detailing his investigation and findings concerning the fraudulent returns of service.

[Id.].

Plaintiff alleges that as a result of Investigator Montoya's actions, Plaintiff was "effectively hindered and outright prevented from communicating with his attorney, providing documented evidence, defending and properly objecting, etc., to Defendants Estate, Keener, and Scrantons motion for relief." As a result, his judgments totaling more than $70,000 against Opal Wilson were dismissed. [See El Paso County District Court, Orders for Relief from Final (Default) Judgment Pursuant to C.R.C.P. Rule 60(b)(5) in Case Nos. 02CV4252 and 03CV858, dated March 22, 2004, attached as Exhibits E and F]. Plaintiff filed an Objection to Defendant's Motion to Remove Lien and Motion to Reconsider and Vacate the Court's Order, which was denied on May 3, 2004. [See Order, Case No. 03CV858, attached as Exhibit I]. Plaintiff asked the El Paso District Court to reconsider its Order in Case No. 03CV858, arguing that Inspector Montoya submitted a fraudulent affidavit and interfered with Plaintiff's ability to pursue his case by placing him in segregation, transferring him to another facility, and seizing his legal documents. [See Plaintiff's Motion to Amend Findings and Order Pursuant to C.R.C.P. 59(a)(3) & (4), 60 and 69(b), Case No. 03CV858, attached as Exhibit H]. The court denied Plaintiff's request. [See Order, May 3, 2004, Case No. 03CV858, attached as Exhibit I]. The court also denied other requests for reconsideration filed by Plaintiff. [Order, July 23, 2004, Case No. 03CV858, attached as Exhibit J]. III. STANDARD OF REVIEW

When a court considers a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and the motion raises alternative bases for dismissal, the court should first decide the jurisdictional issue. Moir v. Greater Cleveland Regional Transit Authority, 895

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F.2d 266, 269 (6th Cir. 1990). " 'Rule 12(b)(1) motions generally take one of two forms. The moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.'" Merrill Lynch Business Fin. Svcs., Inc. v. Nudell, 363 F.3d 1072 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003). The plaintiff bears the burden of proving

jurisdiction. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991); Moir, 895 F.2d at 269. A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), on the other hand, should be granted if it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" of the Complaint. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). On a Rule 12(b)(6) motion, the court accepts the well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). Construing the allegations in the light most favorable to the plaintiff, the court

determines whether the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). The deferential rules on a Rule 12(b)(6) motion, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Although the district court must construe a pro se plaintiff's complaint liberally under this standard, Haines v. Kerner, 404 U.S. 519, 520-21

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(1972), the court, nevertheless, should not assume the role of advocate, and should dismiss claims that are supported only by vague and conclusory allegations. Hall, 935 F.2d at 1110. IV. A. ARGUMENT

INSPECTOR MONTOYA IS ENTITLED TO QUALIFIED IMMUNITY BECAUSE PLAINTIFF FAILS TO STATE ANY CLAIM FOR VIOLATION OF HIS CONSTITUTIONAL RIGHTS 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]. This claim fails because Inspector Montoya is entitled to qualified immunity. When government officials perform discretionary functions, such as investigating a prisoner for possible charges of fraud, arranging the prisoner's placement into segregation pending investigation, and inspecting the prisoner's papers and materials as they relate to the possible charges, they will not be held liable for their conduct unless their actions violate "clearly established statutory or constitutional rights of which 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. Qualified immunity is more than an affirmative defense; it is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Cruz v. City of Laramie, 239 F.3d 1183, 1187 (10th Cir. 2001); Pino v. Higgs, 75 F.3d 1461, 1469 (10th Cir. 1996); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644-46

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(10th Cir. 1988). Once the defendant raises a qualified immunity defense, the burden shifts to the plaintiff to show two things: (1) the defendant's conduct violated the law, and (2) the law was clearly established. Workman v. Jordan, 32 F.3d 475, 479 (10th Cir. 1994). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Reynolds v.

Powell, 370 F.3d 1028, 1030 (10th Cir. 2004) (citing Saucier v. Katz, 533 U.S. 194, 200-01 (2001)); see also Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003) ("Order is important; we must decide first whether the plaintiff has alleged a constitutional violation, and only then do we proceed to determine whether the law was clearly established."). Only if a constitutional or statutory violation is demonstrated does the court look to whether the law was clearly established. Conn v. Gabbert, 526 U.S. 286, 290 (1999); Pueblo, 847 F.2d at 646. "To be clearly established, '[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The right must be clearly established in a "particularized" sense. Anderson, 483 U.S. at 640. For a right to be "'particularized,' there must ordinarily be a Supreme Court or Tenth Circuit decision on point, or 'clearly established weight of authority' from other courts." Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995) (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). See also Wilson v. Layne, 526 U.S. 603, 616 (1999). Inspector Montoya is entitled to summary judgment on the first prong of the qualified immunity defense. First, Plaintiff fails to show a violation of his constitutional right to access to the courts by Inspector Montoya because he fails to show any actual injury from the alleged

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denial of access. Second, Plaintiff fails to allege facts in his Amended Complaint sufficient to show that the allegedly retaliatory actions of Inspector Montoya violated Plaintiff's constitutional rights. Under Reynolds no analysis under the second prong of the qualified immunity test is necessary. 1. Plaintiff Fails to Show Any Actual Injury Beyond a Frustrated Civil Damages Claim Resulting from the Alleged Denial of Access to Courts Plaintiff purports to assert a claim of denial of access to the courts in violation of the First Amendment, but it is the Fourteenth Amendment of the United States Constitution that guarantees prisoners the right to "adequate, effective, and meaningful" access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996); Beville v. Ednie, 74 F.3d 210, 212 (10th Cir. 1996). 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 (1996); Beville, 74 F.3d at 212. "[A]n inmate must allege and prove prejudice arising from the defendants' actions." Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998). 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. A prisoner's constitutional right of access to courts is limited to direct appeals from the convictions for which they were incarcerated or habeas petitions, and to civil rights actions under 42 U.S.C. § 1983 to vindicate "basic constitutional rights." Id., at 354 (citations omitted). The right of access to courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-

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and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id., at 355. Thus, a prisoner's constitutional right to access to the courts can only be based on a hindrance of a direct appeal of the conviction for which the prisoner is incarcerated, a habeas corpus petition, or an action to vindicate a constitutional violation of the prisoner's conditions of confinement. In the absence of such a showing, a claim of unconstitutional denial of access to the courts cannot survive. Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). Plaintiff alleges an injury only with respect to his civil litigation to collect money damages from two alleged breach of contract claims: "Because of Defendants [sic] above described actions Plaintiff was effectively hindered and outright prevented from communicating with his attorney, providing documented evidence, defending and properly objecting, etc., to Defendants Estate, Keener, and Scrantons [sic] motion for relief. This resulted in the Civil Court granting Defendant's motion for relief thus dismissing Plaintiff's Judgment(s) against Opal Wilson ­ costing Plaintiff more then [sic] $70,000." [Amended Complaint, p. 6]. Plaintiff's effort to turn his two frustrated civil claims into something of constitutional proportions sufficient to state a cognizable access to courts claim fails. 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 injury sufficient to support a constitutional claim of denial of access to the courts under the Fourteenth Amendment. The civil claims for contractual damages are neither a direct appeal of the conviction for which Plaintiff is incarcerated, a habeas

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corpus petition, nor an action to vindicate a constitutional violation of Plaintiff's conditions of confinement. 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 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. 2. Plaintiff Fails to Show a Violation of His Constitutional Rights from the Various Allegedly Retaliatory Actions Taken by Inspector Montoya Plaintiff claims that Inspector Montoya took a number of unconstitutional actions in retaliation for Plaintiff's pursuit of his claims for civil damages against Opal Wilson. None of the actions, however, constitutes a violation of any of Plaintiff's constitutional rights as a matter of law. a. PUNITIVE SEGREGATION, TRANSFER TO HIGHER SECURITY FACILITY, RECLASSIFICATION OF SECURITY LEVEL

Plaintiff claims that Inspector Montoya had him placed "in punitive segregation (without any disciplinary charges) for 30-days." [Amended Complaint, p. 5]. That allegation does not state a claim for deprivation of a constitutional right. Under the Fourteenth

Amendment, Plaintiff's discipline in segregated confinement is not an atypical, significant deprivation that will give rise to a liberty interest entitled to due process protection. Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996) (citing Sandin v. Conner, 515 U.S. 472, 486 (1995)). Every decision to remove a particular inmate from the general prison population for an indeterminate period cannot be characterized as cruel and unusual. If new conditions of

confinement are not materially different from those affecting other prisoners, a transfer for the duration of a prisoner's sentence might be completely unobjectionable and well within the

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authority of the prison administrator. Hutto v. Finney, 437 U.S. 678, 686 (1978). Plaintiff makes no allegation that his removal from population for 30 days was materially different from segregations experienced by other prisoners. Plaintiff also claims Inspector Montoya had him "transferred to a higher security facility, which was a regressive move, and caused [him] the loss of his job and privileges." [Amended Complaint, p. 5]. Such an allegation does not state a claim for deprivation of a constitutional right. The Due Process Clause does not establish a liberty interest in prisoners to be free from intrastate prison transfers. Sandin, 515 U.S. at 478. Transfer to a maximum security facility, albeit one with more burdensome conditions, is "within the normal limits or range of custody which the conviction has authorized the State to impose." Id. Although states may create liberty interests protected by the Due Process Clause, such "interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id., at 483-84 (internal citations omitted). Likewise, inmates have no inherent constitutionally protected right to housing in a particular institution or to a particular classification. Vitek v. Jones, 445 U.S. 480, 489 (1980); Meachum v. Fano, 427 U.S. 215, 225 (1976). Nor do inmates have a legitimate claim of entitlement to remain in the general prison population. Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir. 1978). Plaintiff also claims Inspector Montoya "[f]alsely had 10 classification points added to [his] Custody Rating for 'Detainer/Pending Charges' when no charges or detainers existed." [Amended Complaint, p. 5]. Reclassification of custody rating does not deprive a

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prisoner of a constitutional right. Changing an inmate's prison classification ordinarily does not deprive him of liberty because he is not entitled to a particular degree of liberty in prison. Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994); Meachum, 427 U.S. at 225 (1976). Moreover, a prisoner's reclassification implicates a due process right only where it imposes an "atypical or significant hardship on the inmate in relation to the ordinary incidents of prison life," Sandin, 515 U.S. at 485, "or threatens to lengthen his term of imprisonment." Id. at 487. Plaintiff does not allege that his reclassification imposed an "atypical or significant" hardship on him, or that it is likely to lengthen his term of confinement. Because punitive segregation, a transfer to a higher security facility, and a reclassification do not give rise to a liberty interest, Plaintiff states no constitutional claims, and Inspector Montoya is entitled to qualified immunity. b. SEIZURE OF LEGAL DOCUMENTS AND MATERIALS

Plaintiff claims that Inspector Montoya "seized, read, and kept all Plaintiff's legal documents and entire case files, which included, inter alia: attorney/client communication, legal motions, court judgment, orders, filings, recorded liens, receipts, contracts, document evidence, case law, research, etc. Every document Plaintiff had related to cases 02cv42252 and 03cv858 and Opal Wilson." [Amended Complaint, at p. 5]. Such an allegation does not state a claim for deprivation of a constitutional right. Not every seizure of legal materials from a prisoner raises constitutional concerns. Clemmons v. Davies, 1996 U.S. App. LEXIS 12365 (10th Cir. 1996) (copy attached as Exhibit K). Where a prisoner alleges that the seizure of legal materials has deprived him of his constitutional right of access to the courts -- but does not allege a complete denial of access to legal resources -- he must establish that he has been prejudiced by the

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defendant's actions in order to prevail.

Twyman, supra (prisoner must show he has been The prisoner's

prejudiced in his lawsuits by inability to use library or other resources).

prosecution of the underlying action must be affirmatively hindered in some significant way; there must be "actual substantial prejudice to specific litigation" such as court dates missed or inability to make timely filings. Clemmons, supra, at 12-13; Martin v. Davies, 917 F.2d 336, 340 (7th Cir. 1990), cert. denied, 501 U.S. 1208 (1991). In Green v. Johnson, 977 F.2d 1383 (10th Cir. 1992), for example, five of plaintiff's cases were dismissed on appeal for lack of prosecution and two others were dismissed after the district court denied plaintiff's request for access to the prison law library. Id., at 1390. No such prejudice is shown by Plaintiff here. When Inspector Montoya began his investigation, Plaintiff had already obtained default judgments against Opal Wilson, had filed liens against her property, and had obtained counsel, who had begun collection procedures on Plaintiff's behalf. [See Amended Complaint, pp. 4-6]. Thus, Plaintiff states no facts related to the seizure of his documents that demonstrate adverse effect on his two cases against Opal Wilson. When representatives of the Estate of Opal Wilson sought relief from the default judgments on the basis of fraudulent notices of service of process, Plaintiff's counsel filed objections on Plaintiff's behalf, which objections were reviewed and rejected by the Court. [See Additional Response, April 1, 2004, Case No. 03CV858, attached as Exhibit G; Order, May 3, 2004, Case No. 03CV858, attached as Exhibit I]. The filing of such objections by his counsel evidence effective communication between Plaintiff and his counsel. After Plaintiff's counsel withdrew from the two Wilson cases, Plaintiff filed further motions for reconsideration pro se, which were also denied by the Court. [See Order, July 23, 2004, Case No. 03CV858, attached as

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Exhibit J]. Once again, in spite of the seizure of his documents as part of an investigation, Plaintiff was able to assert his position and interests with regard to the relief sought and obtained by the representatives of the Estate of Opal Wilson. Thus, Plaintiff suffered no prejudice in the prosecution of his claims, and Inspector Montoya is entitled to qualified immunity. c. FILING A FALSE AFFIDAVIT IN PLAINTIFF'S CIVIL CASES

Plaintiff claims that Inspector Montoya "[f]iled an outright false and perjurious affidavit with Defendant Scranton, whom [sic] in turn, filed the false affidavit in Plaintiff's civil cases. On March 29, 2004, Defendant Montoya amended his previous affidavit (dated

January 30, 2004] and submitted it to Defendant Scranton whom [sic] withheld this amended affidavit from the Plaintiff." [Amended Complaint, p. 5]. Such an allegation does not state a constitutional violation. First, Plaintiff alleges that Inspector Montoya gave the affidavit to Defendant Scranton, but did not himself file the affidavit with the Court. Thus, no basis is stated against Inspector Montoya for filing an allegedly false affidavit. Second, all witnesses ­

including police officers, prosecutors and other lawyers, as well as lay witnesses -- are absolutely immune from civil liability based on their testimony in judicial proceedings, Briscoe v. Lahue, 460 U.S. 325, 328 (1983), even if their testimony in judicial proceedings is false or defamatory (at least so long as the statements are related to the proceeding. Burns v. Reed, 500 U.S. 478, 489-490 (1991). Otherwise, subjecting government officials, such as investigators and police officers, to damages liability under 42 U.S.C. § 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties since 1983 lawsuits against such witnesses, like lawsuits against prosecutors, could be expected with some frequency and could be very time-consuming, imposing significant

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burdens on the judicial system and on law-enforcement resources. Briscoe, 460 U.S. at 343. Because Inspector Montoya submitted the allegedly false affidavit as a witness at a judicial proceeding, he is absolutely immune from liability. d. CAUSING STRIFE AND CONFLICT WITH PLAINTIFF'S PASTOR

Plaintiff alleges that Inspector Montoya "[p]ersonally drove and visited [his] Pastor and friend at his home, to cause strife and conflict between them, which did end a 15-year relationship with his pastor and friend." [Amended Complaint, p. 6]. Such an allegation does not state a constitutional violation. Assuming the truth of the allegation, Inspector Montoya's action did not impermissibly burden Plaintiff's free exercise of religion in violation of the Free Exercise Clause of the First Amendment. Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir. 1997), rev'd on other grounds, 159 F.3d 1227, 1998 U.S. App. LEXIS 27510 (10th Cir. 1998). e. CONTACTING DENVER POST WITH SLANDER, LIBEL AND MISLEADING MISINFORMATION

Plaintiff claims that Inspector Montoya "[o]n or about March 15, 2004 personally contacted the Denver Post with slander, libal [sic], and misleading misinformation." [Amended Complaint, p. 6]. Such an allegation does not state a constitutional violation. Assuming the truth of the allegation, libel and slander are state law claims, not constitutional violations. Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation. Siegert v. Gilley, 500 U.S. 226, 233 (1991). In addition, as discussed above, the knowingly false statement, and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. Garrison, supra.

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f.

"SHOPPING" FOR A DISTRICT ATTORNEY TO FILE CRIMINAL CHARGES

Plaintiff claims that Inspector Montoya "'[s]hopped' for a District Attorney to file criminal charges against the Plaintiff for civil cases 02CV4252 and 03CV858. Several of the District Attorneys denied [sic] to prosecute the Plaintiff informing Defendant Montoya that these matters are civil cases not criminal matters." [Amended Complaint, p. 6]. Such an allegation does not state a constitutional violation. Plaintiff has no constitutionally protected interest in Inspector's Montoya contacting various District Attorneys to handle a criminal charge against Plaintiff. Further, the District Attorney who filed criminal charges against Plaintiff did so through the exercise of prosecutorial discretion, a decision independent from Inspector Montoya. g. CUTTING OFF PHONE PRIVILEGES

Plaintiff claims that Inspector Montoya "[s]hut-off [his] telephone privileges to prevent Plaintiff from communicating with attorneys of record in the civil cases." [Amended Complaint, p. 6]. First, Plaintiff's claim of deprivation of phone privileges alleges no actual injury. See discussion above in Section A(1); see also Bounds v. Smith, 430 U.S. 817, 828, (1977); Lewis, 518 U.S. at 349; Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (Mere conclusory allegations of "actual injury" do not suffice; appellants must evidence that their efforts to pursue a legal claim were hindered.) Second, an inmate has no right to unlimited telephone use. Robinson v. Gunja, 92 Fed. Appx. 624, 627-628 (10th Cir. 2004) (citing Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989)). Instead, a prisoner's right to telephone access is "subject to rational limitations in the face of legitimate security interests of the penal institution." Id. (citing Strandberg v. City

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of Helena, 791 F.2d 744, 747 (9th Cir. 1986)). The exact nature of telephone service to be provided to inmates is generally to be determined by prison administrators, subject to court scrutiny for unreasonable restrictions." Id. (citing Fillmore v. Ordonez, 829 F.Supp. 1544, 156364 (D. Kan. 1993), aff'd, 17 F.3d 1436 (10th Cir. 1994)). Although Plaintiff filed a grievance related to the telephone privileges, he cannot demonstrate that the restriction on his telephone use was an inappropriate step in view of the reason stated in the response to his grievance was "alleged use of the phone to pursue the filing of false liens." [Response to Step 3 Grievance, attached as Exhibit 6 to Amended Complaint]. Under Colorado Department of Corrections ("CDOC") Administrative Regulation 850-12 ("Telephone Regulations for Offenders") (attached as Exhibit L),4 disciplinary sanctions may be imposed for the abuse or misuse of telephone privileges, and restriction of telephone privileges may be imposed for violation for any rules regarding use of the telephone. [CDOC Administrative Regulation 850-12(IV)(A)(2),

(IV)(K)(6)]. Conversations about illegal activities, either inside or outside the institution, may lead to criminal prosecution and/or processing under the COPD. [Id., at (IV)(P)(1)]. Third, Plaintiff was not prevented from communicating with his counsel. Plaintiff could have arranged visits by his attorney. Plaintiff could have communicated in writing with his counsel. Indeed, the filing of objections by his counsel show that Plaintiff was able to communicate effectively with his counsel respecting the ongoing Opal Wilson cases.
4

In

This Court may consider the CDOC Telephone Regulations for Offenders, attached as Exhibit L, without converting this Motion to Dismiss to a motion for summary judgment pursuant to Fed. R. Civ. P. 10(c). If the plaintiff chooses not to attach a document to his complaint that is referred to in the complaint and is crucial to the plaintiff's claim, the defendant may attach the document to its motion to dismiss to be considered by the court in determining the sufficiency of plaintiff's allegations. GFF Corp, supra, 130 F.3d at 1384-85.

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addition, CDOC's Telephone Regulations permit an inmate to communicate with counsel by telephone on an emergency basis if there is an imminent, previously unknown, court deadline. [Id., at (IV)(L)(4)]. Because Plaintiff fails to show any violation of his constitutional rights in the actions alleged to be retaliatory as enumerated in his Amended Complaint, the Court need not proceed to determine whether the law was clearly established. Conn, supra; Pueblo, supra. Even if the Court chooses to proceed to a determination of whether the law was clearly established, Plaintiff can cite to no precedent holding that the alleged actions of Inspector Montoya, described in the Amended Complaint as being retaliatory, violated his constitutional rights. As a result, Inspector Montoya is entitled to qualified immunity on Plaintiff's claims. B. PLAINTIFF FAILS TO SHOW A PHYSICAL INJURY AS REQUIRED BY THE PRISON LITIGATION REFORM ACT, 42 U.S.C. § 1997e(e) IN HIS CLAIM FOR DAMAGES Plaintiff's claim against Inspector Montoya must be dismissed because he fails to show physical injury from Inspector Montoya's actions as required to be shown under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e) ("PLRA"). The PLRA provides that no federal action for damages shall be brought by a prisoner in custody absent a showing of a physical injury. 42 U.S.C. § 1997e(e). "[A]lthough 'mental and emotional distress can constitute a compensable injury in suits for damages under 42 U.S.C. § 1983 based upon violations of constitutional rights, [§ 1997e(e) provides] that such a suit cannot stand unless the plaintiff has suffered a physical injury in addition to mental or emotional harms.'" Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 807 (10th Cir. 1999) (quoting Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997)). The PLRA's physical injury requirement applies to all types of claims brought

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by prisoners no matter what constitutional right allegedly was violated. "The statute limits the remedies available, regardless of the rights asserted, if the only injuries are mental or emotional." Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001), cert. denied, 536 U.S. 904 (2002). Plaintiff associates no physical injury associated with his claim against Inspector Montoya. He only claims that he was deprived of the opportunity to collect $70,000 on the default judgments he obtained against Opal Wilson. As a result, his claim for monetary damages fails under the PLRA. C. INSPECTOR MONTOYA IN HIS OFFICIAL CAPACITY IS NOT A "PERSON" UNDER 42 U.S.C. § 1983. Plaintiff's claim under against Inspector Montoya in his official capacity fails because he is not a "person" for purposes of a claim under 42 U.S.C. § 1983. Claims may be made under 42 U.S.C. § 1983 only against "[e]very person" who, under color of state law, deprives a citizen of rights, privileges, and immunities secured by the federal Constitution and laws. U.S.C. § 1983. 42

The Supreme Court has interpreted "every person" to exclude the States

themselves. Hafer v. Melo, 502 U.S. 21, 26 (1991); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989). State officials acting in their official capacities are not "persons" for purposes of 42 U.S.C. § 1983 because "they assume the identity of the government that employs them." Hafer, 502 U.S. at 27; Will, 491 U.S. at 71. Because Inspector Montoya is not a "person" under 42 U.S.C. § 1983, Plaintiff's claims against him in his official capacity must be dismissed as a matter of law.

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D.

THIS COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE ELEVENTH AMENDMENT BARS PLAINTIFF'S CLAIMS AGAINST INSPECTOR MONTOYA IN HIS OFFICIAL CAPACITY. Plaintiff seeks declaratory relief, compensatory, nominal, and punitive damages against

Inspector Montoya. The Eleventh Amendment bars claims brought by private persons in federal court against states for damages and/or retroactive relief. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985); Moore v. City of Wynnewood, 57 F.3d 924, 929 n. 4 (10th Cir.1995). Thus, Plaintiff's claims against Inspector Montoya in his official capacity are simply claims against the State of Colorado. Congress did not intend 42 U.S.C. § 1983 to abrogate Eleventh Amendment immunity or override state immunity. Quern v. Jordan, 440 U.S. 332, 340-45 (1979); Graham v. State ex rel. University of N. Colo., 956 P.2d 556, 561 (Colo. 1998). The State of Colorado has not waived its Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). Because of the Eleventh Amendment bars claims for damages against Inspector Montoya in his official capacity, the Court must dismiss the Amended Complaint under Fed. R. Civ. P. 12(b)(1).

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For all the foregoing reasons, 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 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

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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 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 nonparticipant'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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