Free Response to Motion - District Court of Colorado - Colorado

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

Document 139

Filed 06/26/2006

Page 1 of 9

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, and JENELLE BORDEN, in their individual and official capacities, Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER ______________________________________________________________________________ Defendants James A. Montoya and Jenelle Borden, by and through their counsel, Awilda R. Marquez, Esq., and Hall & Evans, L.L.C., in response to Plaintiff's Motion for Protective Order, state as follows: Plaintiff, Patrick Hawkinson, a pro se prisoner incarcerated with the Colorado Department of Corrections ("CDOC") at Arkansas Valley Correctional Facility, filed fraudulent returns of service in two lawsuits in El Paso County District Court against Opal Wilson in cases number 02CV4252 and 03CV858, and obtained default judgments against Ms. Wilson in the approximate amount of $70,000.00. After the death of Ms. Wilson, the representative of her estate contacted Defendant Montoya, an investigator with the CDOC Inspector General's Office, and asked Investigator Montoya to look into the matter. Investigator Montoya explored the two Wilson cases and Plaintiff's activities therein and submitted an affidavit setting forth the results

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

Document 139

Filed 06/26/2006

Page 2 of 9

of his investigation in support of the Wilson estate's effort to have the default judgments vacated. Based upon Investigator Montoya's affidavit, the state court determined the default judgments were fraudulently obtained and dismissed both of Plaintiff's civil actions against Ms. Wilson. After filing this action, Plaintiff was criminally prosecuted for attempted theft and forgery/simulation/impersonation with regard to his actions against Ms. Wilson and, as a habitual criminal, was sentenced to 24 years in prison. His appeal of the criminal conviction is pending. Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging that Investigator Montoya violated his constitutional rights to due process, access to the courts and communication with his attorney by conducting the investigation of the Wilson cases, seizing Plaintiff's documents relating to the Wilson cases, submitting the affidavit that resulted in dismissal of the Wilson cases, threatening, and "shopping" for a district attorney to file criminal charges. With regard to Defendant Borden, Plaintiff alleges that she denied him access to the prison law library to research how to appeal his loss in the two Wilson cases, in violation of constitutional right to access to the courts. Plaintiff now asks the Court for a protective order barring Defendants from conducting "any discovery" with regard to (1) the two lawsuits Plaintiff filed against Opal Wilson in El Paso County District Court, cases number 02CV4252 and 03CV858, which were dismissed by the state court on findings that Plaintiff filed fraudulent Notices of Service of Process on Ms. Wilson; and (2) Plaintiff's criminal case for attempted theft and

forgery/simulation/impersonation in Bent County District Court case number 04CR11, which was based on the fraudulent Notices of Service of Process that Plaintiff arranged to have filed in the civil lawsuits against Ms. Wilson. Fed. R. Civ. P. 26(c) authorizes the issuance of a -2-

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

Document 139

Filed 06/26/2006

Page 3 of 9

protective order "for good cause shown" in cases where "justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense...." Plaintiff has the burden to show good cause for a protective order, that is, "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981). Whether to enter a protective order is within the sound discretion of the court. Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995). Plaintiff argues that his criminal conviction is "not final until the Court of Appeals issues it's [sic] mandate," thus warranting invocation of his Fifth Amendment right to remain silent. In addition, Plaintiff argues that he should not be required to respond to any discovery regarding the two Wilson cases because his criminal prosecution was based on his fraudulent actions in the two Wilson cases, and "any statments [sic] that Plaintiff states in these cases may be used adversely against him in the Bent County criminal matter." While the Fifth Amendment protects a person from having to testify in any way that might tend to subject him to criminal liability, Hoffman v. U.S., 341 U.S. 479, 486 (1951), and the privilege has long been applied in the civil context, see McCarthy v. Arndstein, 266 U.S. 34, 40 (1924), Defendants Montoya and Borden are entitled to the information necessary to adequately prepare their defense and refute the underlying claims. Under Fed. R. Civ. P. 26(b)(1), Defendants Montoya and Borden "may obtain discovery regarding any matter not privileged that is relevant to the claim or defense of any party." Thus, Plaintiff's request focuses on the competition between Plaintiff's

constitutional right to assert his Fifth Amendment privilege and Defendants' right to prepare their defense. As a threshold matter, it is not clear whether Plaintiff's Motion establishes specifically -3-

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

Document 139

Filed 06/26/2006

Page 4 of 9

enough the information he seeks to protect that may subject him to the possibility of prosecution. Plaintiff claims a privilege for "all questions" regarding the two Wilson cases and his criminal case. The Court must determine if the privilege against incrimination is properly invoked by analyzing whether such a blanket privilege is the sort that could, directly or indirectly, subject the Plaintiff to the possibility of prosecution. See Kastigar v. U.S., 406 U.S. 441, 445 (1972). Defendants have no specific discovery questions pending. Although Defendants scheduled a deposition of Plaintiff for June 12, 2006, at the Arkansas Valley Correctional Facility, the deposition failed to proceed when Plaintiff refused to answer any questions on the ground that he had received no prior notice of the Deposition.1 Notably, Plaintiff stated at the aborted

deposition that he intended not to answer any questions about the two Wilson cases and about his criminal conviction. Defendants have not yet rescheduled the deposition and have conducted no other discovery. On the other hand, Defendants have every intention of asking Plaintiff about the two Wilson cases and his criminal case. Thus, the Court may consider Plaintiff's Motion sufficiently specific to determine an appropriate remedy. In that case, Defendants ask the Court to adopt a balancing test in determining how Plaintiff's Motion should be decided. The United States Court of Appeals for the Tenth Circuit has not specifically addressed the contest of interests implicated

1

See Plaintiff's Notice of Attorney Misconduct, and Defendants' response, related -4-

thereto.

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

Document 139

Filed 06/26/2006

Page 5 of 9

in Plaintiff's invocation of his Fifth Amendment right to the course of discovery here.2 Among the circuits, however, when the privilege against self-incrimination has been invoked, the courts have considered the defendant's need for the information withheld, whether the defendant has any alternative means of obtaining that information, and whether any effective remedy, short of dismissal, is available to safeguard both parties' interests.3 In such cases, the courts have

dismissed the case, stayed the matter until resolution of the potential for criminal prosecution, or allowed an adverse inference to be drawn by the fact finder from the party's silence. In Serafino v. Hasbro, Inc., 82 F.3d 515 (1st Cir. 1996), the First Circuit Court of Appeals noted that, in a civil proceeding, "one party's assertion of his constitutional right should not obliterate another party's right to a fair proceeding." Id., at 518. The court emphasized the necessity of balancing the competing interests of the parties. Id. That is, the Fifth Amendment privilege should be upheld unless defendants have substantial need for particular information and there is no other less burdensome effective means of obtaining it, and sometimes dismissal may

In United States v. A & P Arora, Ltd., 1995 U.S. App. LEXIS 1056 (10th Cir. 1995), the Tenth Circuit did not address the defendants' motion for protective order because they failed timely to file for reconsideration under Fed. R. Civ. P. 72 and because assertion of the privilege was made by defendants' counsel rather than by defendants personally. Instead, the Court affirmed the district court's grant of default judgment as a discovery sanction under Fed. R. Civ. P. 37(b)(2)(C) for defendants' repeated, unexcused procedural omissions. In U.S. v. One Parcel of Real Property Described as Lot 41, Berryhill Farm Estates, 128 F.3d 1386 (10th Cir. 1997), also decided on other grounds, the district court stayed a civil forfeiture action when the defendant asserted his Fifth Amendment right against self-incrimination on the threat of federal criminal prosecution and ordered the United States to notify the court when the criminal investigation was completed. Id. at 1389. 3 See Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 141 (Colo. 2004) (prior to determining what consequence will flow from a plaintiff's invocation of the privilege, a trial court must consider the defendant's need for the information withheld, whether the defendant has any alternative means of obtaining that information, and whether any effective remedy, short of dismissal, is available to safeguard both parties' interests). -5-

2

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

Document 139

Filed 06/26/2006

Page 6 of 9

be the only viable alternative. Id., at 158. The court affirmed the trial court's dismissal of the case with prejudice. Id., at 158. In McMullen v. Bay Ship Management, 335 F.3d 215 (3rd Cir. 2003), the Third Circuit Court of Appeals held that the plaintiff's invocation of the Fifth Amendment privilege against self-incrimination did not warrant dismissal of the litigation because other, less drastic measures were available to cope with the failure to comply with the defendant's discovery requests. Id., at 216. The court found that "the detriment to the party asserting [the privilege] should be no more than is necessary to prevent unfair and unnecessary prejudice to the other side." Id., at 218 (citation omitted). The court remanded for further consideration of the proposals from the parties to stay the matter or to place the case on the inactive list until plaintiff "is no longer under the cloud of criminal prosecution." Id., at 218-219. In In re Carp, 340 F.3d 15 (1st Cir. 2003), the First Circuit held that the trial court has discretion over whether a negative inference is an appropriate response to the invocation of the Fifth Amendment in a particular civil case. Id., at 23. The Fifth Amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify, id. (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)), nor does it mandate such inferences, especially as regards topics unrelated to the issues they refused to testify about. Id. (citation omitted).

Allowing the fact finder to draw an adverse inference from the party's silence substantially levels the playing field for the opposing party. See S.E.C. v. Colello, 139 F.3d 674, 677 (9th Cir. 1998). In conducting a balancing test here, the Court must find that Defendants' need for information with regard to the two Wilson cases and Plaintiff's criminal conviction is directly relevant and critical to their defenses and preparation for trial, including for the purposes of -6-

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

Document 139

Filed 06/26/2006

Page 7 of 9

impeachment.

Plaintiff's claims are imbued with the facts surrounding the two cases that

Plaintiff filed against Ms. Wilson. Most of the allegations Plaintiff makes against Investigator Montoya relate to Investigator Montoya's investigation of Plaintiff's actions in the two Wilson cases. Plaintiff also accuses Investigator Montoya of "shopping" for a district attorney in order to have the criminal charges filed against Plaintiff. Plaintiff's allegations against Defendant Borden relate to the two Wilson cases. Thus, facts underlying the two Wilson cases and

Plaintiff's criminal case are relevant and material to Plaintiff's claims against both Defendants here, as well as Defendants' defenses in this case. The defenses that Defendants may assert -from qualified immunity, to the level of injury suffered by Plaintiff, to the impact of the alleged seizure of documents on his civil and criminal cases, to the role that Investigator Montoya played in the civil and criminal cases -- are based on the facts surrounding the two civil cases and Plaintiff's criminal case. Defendants, therefore, are entitled and must be permitted to pursue and obtain discovery related to the two Wilson cases and to Plaintiff's criminal conviction. Defendants have no any alternative means of obtaining the information that Plaintiff could provide regarding the two Wilson cases and Plaintiff's criminal conviction. Defendants must be able to obtain from Plaintiff information regarding his claim that he was denied communication with his attorney, information regarding his representation at trial and opportunity to examine witnesses and testify, information regarding his claims that the Notices of Service of Process that were filed in the Wilson cases were valid, information regarding his dealings with Ms. Wilson, and the extent of his exclusion from the prison law library. None of this information is available except through Plaintiff's testimony.

-7-

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

Document 139

Filed 06/26/2006

Page 8 of 9

If Plaintiff refuses to provide the information relevant to and necessary for Defendants' defense, dismissal may be appropriate, unless the Court should decide to stay the matter pending resolution of Plaintiff's appeal of his criminal conviction. WHEREFORE, Defendants respectfully request this Court to either deny Plaintiff's Motion for Protective Order, order Plaintiff to respond to questions regarding the two Wilson cases and his criminal case at discovery, or dismiss or stay this case. DATED this 26th 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 DEFENDANTS

-8-

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

Document 139

Filed 06/26/2006

Page 9 of 9

CERTIFICATE OF MAILING I HEREBY CERTIFY that on the 26th day of June, 2006, I mailed a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER, correctly addressed, postage prepaid, in the U.S. Mail to the following: Patrick M. Hawkinson, # 62702 Arkansas Valley Correctional Facility PO Box 1000 Crowley, CO 81034 s/Leslie Grauberger, Legal Secretary______ Awilda R. Marquez 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 Defendants

-9-