Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 03-CV-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, KIM DEMPEWOLF, RYAN BRADLEY, MARY, SANDRA, AARON, JASON and CHARLES Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR RELIEF FROM ORDER PURSUANT TO FED. R. CIV. P. 60(b) ______________________________________________________________________________ COME NOW the Defendants, CMI, Kim Dempewolf, and Marye Deming, by and through their attorneys, Pryor Johnson Carney Karr Nixon, P.C., and in response to Plaintiff's Motion for Relief from Order Pursuant to Fed. R. Civ. P. 60(b), state and aver as follows: 1. Plaintiff states that he did not receive Judge Weinshienk's Order of April 26, 2004,

which dismissed Plaintiff's first three claims. Judge Miller's Order of June 8, 2005 addressed Plaintiff's non-receipt of Judge Weinshienk's Order of April 26, 2004, and stated that Judge Weinshienk's dismissal of Plaintiff's first three claims is considered "law of the case." The Court also stated that Plaintiff could seek reconsideration pursuant to Fed. R. Civ. P. 60(b), noting that

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under United States v. Monsisvais, 946 F. 2d 114 (10th Cir. 1991), the Court may reopen an issue decided under the theory of law of the case if "the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." Id. at 117. 2. First, Defendants submit that Plaintiff's instant motion is untimely. Under Fed. R.

Civ. P. 60(b), a motion to reconsider must be filed within a "reasonable time." Defendants submit that the filing of the instant motion four months after Judge Miller's Order is belated. 3. Further, Plaintiff has not cited a change in controlling authority with respect to Judge

Weinshienk's ruling. Judge Weinshienk appropriately dismissed Plaintiff's due process claims under Heck v. Humphrey, 512 U.S. 477 (1994). In his motion, Plaintiff appropriately refers to the holding in Heck that in order to recover under §1983 for an alleged unconstitutional conviction or imprisonment, Plaintiff must prove that the sentence or conviction has been reversed, expunged, declared invalid or called into question by a federal court's issuance of a writ of habeas corpus. Id. at 486-87. The Court in Heck specifically stated: "A claim for damages bearing that relationship to conviction that has not been so invalidated is not cognizable under §1983." Id. at 487. Plaintiff admits he is seeking monetary damages for his due process claims. See Plaintiff's Motion, ¶ 5. Judge Weinshienk appropriately ruled that because Plaintiff's first three claims challenged the validity of his criminal conviction, they are barred under Heck. 4. Plaintiff's citation to Wilkinson v. Dotson, 125 S. Ct. 1242 (2005) is misplaced. In

Wilkinson, the Court held that prisoners' challenges relating to parole eligibility were not the type of claims that would necessarily imply the invalidation of a conviction or sentence, and therefore -2-

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were not barred under Heck. Id. at 1248. This is not the situation in this case, as Plaintiff's first three claims would require an invalidation of Plaintiff's conviction in order to be cognizable under §1983. 5. Therefore, Defendants submit that Plaintiff's motion is untimely and without merit,

as Judge Weinshienk appropriately dismissed Plaintiff's first three claims. Accordingly, Defendants request that Plaintiff's motion be denied.

Respectfully submitted this 12th day of October, 2005.

s/Steven J. Wienczkowski Scott S. Nixon Steven J. Wienczkowski PRYOR JOHNSON CARNEY KARR NIXON P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 (303) 773-3500 ATTORNEYS FOR CMI, KIM DEMPEWOLF AND MARYE DEMING

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CERTIFICATE OF MAILING I hereby certify that on the 12th day of October, 2005, a true and correct copy of the foregoing was served via electronic filing, addressed to: Oloyea D. Wallin Reg. No. 111389 AVCF Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, Colorado 81034 Jason Coolidge 1606 Iris Street, #62 Lakewood, Colorado 80215

s/Laura Buckingham Laura Buckingham on behalf of Pryor Johnson Carney Karr Nixon, P.C.

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