Horton v. Fenlon et al
ORDER granting in part and denying in part 68 Motion for Order to take Judicial Notice. By Magistrate Judge Nina Y. Wang on 11/19/15.(nywlc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01089-REB-NYW
BLAKE DAVIS, ADX Warden,
MARK COLLINS, ADX Admin. Remedy Coordinator,
P. RANGEL, ADX Unit Manager,
D. FOSTER, ADX Counselor,
A. FENLON, ADX Case Manager,
ORDER ON MOTION TO TAKE JUDICIAL NOTICE OF FACTS AND EVIDENCE
Magistrate Judge Nina Y. Wang
This matter comes before the court on a Motion to Take Judicial Notice of Facts and
Evidence (“Motion to Take Judicial Notice”) [#68] filed by Plaintiff Willie Horton (“Plaintiff” or
“Mr. Horton”) on November 10, 2015, which was referred to this Magistrate Judge by
memorandum dated November 12, 2015. [#69]. By Minute Order dated November 12, 2015,
this court ordered the remaining Defendants in this action, D. Foster and A. Fenlon (collectively,
“Defendants”) to respond no later than November 18, 2015. [#70]. Defendants filed a timely
Response objecting to Plaintiff’s Motion to Take Judicial Notice and arguing it was unclear the
facts for which Mr. Horton was requesting the court to take notice, that judicial notice was not
appropriate when the origins of the documents were unclear and some of the correspondence was
unsigned, and, to the extent Mr. Horton was attempting to use such documents to supplement his
response to the pending Motion to Dismiss, he should not be permitted to do so without
explanation as to why he could not have submitted the documents earlier. [#72].
Rule 201 of the Federal Rules of Evidence permits a court to take “judicial notice” of a
particular fact where that fact is not subject to reasonable dispute because “it is generally known
within the trial court’s territorial jurisdiction; or can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. The purpose of
“judicial notice” is to permit the court to make a finding of fact in the absence of record
evidence. See United States v. Boyd, 289 F.3d 1254, 1258 (10th Cir. 2002). The consequence of
taking judicial notice is “to preclude a party from introducing contrary evidence and, in effect,
directing a verdict against him as to the fact noticed.” Id.
Judicial notice may be taken at any stage of a civil action, including at the motion to
dismiss stage. Fed. R. Evid. 201(d). See also Hansen v. Harper Excavating, Inc., 641 F.3d 1216,
1219 n.2 (10th Cir.2011) (noting that under Rule 201, judicial notice may be taken “whether
requested or not,” and “at any stage of the proceeding”). A court may take judicial notice of its
own files and records, as well as facts which are a matter of public record. Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006). A court may also take judicial notice of other courts’
files and records from the Electronic Court Filing (“ECF”) system, as facts “capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
See Hansen, 641 F.3d at 1219 n.2. And the court may take judicial notice of filings in related
cases. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th
In the context of a motion to dismiss, a court may consider facts subject to judicial notice
without converting a Rule 12(b)(6) motion into one for summary judgment. Tal, 453 F.3d at
1264 n.24. However, when a court takes judicial notice of documents, those documents may
only be considered to show their contents, not to prove the truth of matters asserted therein. Id.
Judicial Notice of Plaintiff’s Documents
As part of his Motion for Judicial Notice, Plaintiff seeks to have the court take judicial
notice of three letters purportedly exchanged between him and his former counsel, James Q.
Butler (“Mr. Butler”), as well as a Notice of Decision from the District of Columbia Bar Clients’
Security Fund dated March 21, 2011. [#68 at 5-9]. As Defendants note, it is unclear which facts
Mr. Horton seeks to have the court take judicial notice of, but this court liberally construes
Plaintiff’s Motion for Judicial Notice under the Tenth Circuit’s standards for interpreting pro se
The Notice of Decision by the District of Columbia Bar was contemplated by the Court
of Appeals for the District of Columbia in Horton v. Butler, 352 F. App’x at 450, is a fact of
public record that is capable of accurate and ready determination from sources whose accuracy
cannot reasonably be questioned, and is appropriate for judicial notice. Less clear is whether
private correspondence between Mr. Horton and Mr. Butler should be afforded judicial notice.
To the extent Plaintiff offers the correspondence to be probative of a factual issue in dispute, e.g.,
whether he has stated a non-frivolous claim of legal malpractice against Mr. Butler in his Second
Amended Complaint, this court finds that it is not appropriate to take judicial notice of the truth
of any facts included in any of the documents. To the extent Plaintiff asks the court to take
judicial notice of the existence and content of such correspondence, the court notes that it has
already taken judicial notice of the determination by the United States District Court for the
Eastern District of Virginia that Mr. Horton’s malpractice claim against his attorney, George F.
West, accrued no later than April 2007, when he retained Mr. Butler to pursue certain claims
against Mr. West and the Assistant United States Attorneys who prosecuted him. See Horton v.
West, No. 1:10cv154(TSE/JFA), 2011 WL 124602, at *4 (E.D. Va. Jan. 13, 2011).
The court notes that it has construed Plaintiff’s Second Amended Complaint to include
the factual allegations as set forth in Plaintiff’s Supplemental Pleading to his Second Amended
Complaint. [#65]. Under the Rule 12(b)(6) standard, the court already accepts as true for the
purposes of considering the Motion to Dismiss all well-pled facts, including that “Mr. Butler
failed to communicate with Petitioner and failed to return legal papers including Petitioner
transcripts.” [#65 at 2]. The court further takes as true the allegation that Mr. Butler was
disbarred from the Bar of the District of Columbia. [Id. at 3].
Given that it is wholly unclear what facts Mr. Horton seeks to have the court accept as
true “to preclude a party from introducing contrary evidence and, in effect, directing a verdict
against him as to the fact noticed,” and given that the court has already afforded Plaintiff the
acceptance of all well-pled facts as true under the Rule 12(b)(6) standard, this court respectfully
declines to take judicial notice of the correspondence between Mr. Horton and Mr. Butler.
For the foregoing reasons, it is ORDERED that:
Plaintiff’s Motion to Take Judicial Notice of Facts and Evidence [#68] is
GRANTED IN PART and DENIED IN PART; and
The court takes judicial notice of [#68 at 9] but declines to take judicial notice of
the other documents offered by Plaintiff [id. at 5-8].
DATED: November 19, 2015
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge
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