Winder v. Montoya
ORDER Reserving ruling on Plaintiff Nikolas Winder's Motion for Preliminary Injunction and Defendant Sheila Montoya's #52 Motion for Protective Order, by Judge William J. Martinez on 1/14/2014.(ervsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2513-WJM-KMT
NIKOLAS WINDER, and
SCOTT WINDER, et al.
SHEILA MONTOYA, and
TIMOTHY GRIFFITH, et al.,
ORDER RESERVING RULING ON PLAINTIFF NIKOLAS WINDER’S
MOTION FOR PRELIMINARY INJUNCTION AND DEFENDANT
SHEILA MONTOYA’S MOTION FOR PROTECTIVE ORDER
This consolidated civil action involves a challenge to the constitutionality of
certain aspects of the State of Colorado’s implementation of its sex offender
management policies and protocol. (See ECF No. 81.) On October 20, 2013, Plaintiff
Nikolas Winder (“Plaintiff”) filed a Motion for Preliminary Injunction asking the Court to
enjoin Defendants John Suthers, Sheila Montoya, and Timothy Griffith (“Defendants”)
from preventing Plaintiff’s privately retained attorney, Allison Ruttenberg, from attending
Plaintiff’s probation meetings. (Civil Action No. 1:13-cv-28601, ECF No. 3 p. 12.) On
October 22, 2013, Defendant Montoya, Plaintiff’s probation officer, filed a Motion for
Protective Order that “prevents the presence of Plaintiffs’ counsel [Ms. Ruttenberg] at
The Motion for Preliminary Injunction was filed in Civil Action No. 1:13-cv-2860, which
the Court sua sponte consolidated with the above-captioned matter.
Mr. Winder’s probation meetings”. (ECF No. 52 at 14.)
In papers filed after these Motions, the parties have represented to the Court that
the requirement for Plaintiff to meet with his probation officer and answer intensive
questioning has been waived, and that Plaintiff has been permitted to simply check-in
with his probation officer on a weekly basis. (See ECF No. 52-1 at 10.) Thus, the
parties appear to have voluntarily created a work-around that has alleviated the need
for immediate Court action on the pending motions.
Additionally, multiple filings suggest that Plaintiff’s probationary term was set to
expire on December 31, 2013. (See ECF No. 78 at 8.) The Court has learned that
Defendants have taken the position that Plaintiff is still on probation, but there appears
to be some effort to resolve this issue through the Virginia state courts. (Id.) If Plaintiff
is discharged from probation, the instant Motions will be moot. It would be a waste of
judicial resources for the Court to devote the resources necessary to resolve the
Motions, only to have the Plaintiff be released from probation.
Finally, Plaintiff has also suggested that, should Defendants resume the practice
of requiring him to meet with his probation officers and answer their questions, he is
willing to obtain an attorney other than Ms. Ruttenberg. (See ECF No. 52-1 at 13.)
This accommodation on the part of the Plaintiff would essentially moot the request for a
protective order, because Defendant Montoya’s basis for her motion is that Ms.
Ruttenberg should not be permitted to attend probationary meetings with Ms. Montoya
because she is opposing counsel on this case. This argument would obviously hold no
weight if the attorney who accompanied Plaintiff to his probationary meetings was not
involved in this action. Again, it would be a waste of judicial resources for the Court to
devote its time to the Motion for Protective Order when it can be so easily mooted.
Accordingly, the Court hereby notifies the parties that, in the absence of some
material change in circumstances, it does not intend to address either Plaintiff’s Motion
for Preliminary Injunction or Defendant Montoya’s Motion for Protective Order on an
expedited basis. The parties’ positions at the heart of these Motions do not appear
irreconcilable, and the Court strongly encourages the parties to work together and
alleviate the need for any Court intervention on this issue.
Dated this 14th day of January, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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