Opinion
Civil Action No. 17-cv-00773-RM-KLM
02-27-2020
JAMES MICHAEL BERTOLO, Plaintiff, v. LAURA SHAIN, in her individual and official capacity, KRISTY STANSELL, in her individual and official capacity, LAURA BORREGO-GIBBS, in her individual and official capacity, MIKE ROMERO, in his individual and official capacity, CAROL TRUJILLO, in her individual and official capacity, RICK RAEMISCH, CDOC Executive Director, in his official capacity, RANDY LIND, FMR Warden, in his individual and official capacity, LEONARD WOODSON III, in his individual and official capacity, SGT SWINGLE, in her individual and official capacity, MATTHEW HANSON, in his individual and official capacity, CHRIS LOBANOV-ROSTOVSKY, in his official capacity, CHARLES TAPPE, in his individual and official capacity, RAE TIMMIE, FMR Warden, in his individual and official capacity, and SHAWNA NYGAARD, in her individual and official capacity, Defendants.
AMENDED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Recommendation is amended to advise the parties as to the filing of objections, as set forth at pages 57-58, infra.
This matter is before the Court on two motions to dismiss: (1) Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint [#174] (the "Motion to Dismiss"); and (2) Defendant Lobanov-Rostovsky's Motion to Dismiss [#191] (the "Lobanov-Rostovsky Motion") (collectively "Motions to Dismiss"). Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR 72.1(c), the Motions to Dismiss have been referred to the undersigned for a recommendation regarding disposition. [#175, #192].
Exhibit [#174] is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). This convention is used throughout the Recommendation.
This Motion was filed by Defendants Laura Shain, Kristy Stansell, Laura Borrego-Gibbs, Mike Romero, Gary Ward, Trisha Kautz, Kelsey Dillinger, Carol Trujillo, Matthew Hansen, Leonard Woodson, Sara Swingle, Nicole Blatnick, Rhonda Belcher, Reed Berndt, Daniel Schellenger, Rick Raemisch, James Falk, Randy Lind, Shawna Nygaard, Charles Tappe, and Rae Timmie.
The Court has reviewed the Motions to Dismiss [#174, #191], the Response [#194], the Replies [#200, #201], Plaintiff's "Supplemental Reply" [#203] ("Surreply"), the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court recommends that the Motions to Dismiss be granted and that this case be dismissed.
Plaintiff did not seek leave to file this Surreply as required, but the Court will consider it as Plaintiff is proceeding pro se. See n.4, infra.
I. Background
Plaintiff is a pro se litigant and inmate of the Colorado Department of Corrections ("CDOC"), housed at Sterling Correctional Facility ("SCF"). Plaintiff initially filed this action on March 23, 2017. Compl. [#1]. An Amended Prisoner Complaint [#24] asserting a class action, filed on April 3, 2017, was stricken by the Court [#25]. By Order [#58] of February 6, 2018, Plaintiff was directed to file a Second Amended Complaint. Plaintiff filed a Second Amended Complaint [#61] on March 7, 2018. By Order [#68] of May 23, 2018, the Court directed Plaintiff to amend his complaint once again, and on June 22, 2018, Plaintiff filed a Third Amended Complaint [#76] against 28 defendants. By Order [#80] of July 18, 2018, the Court ordered dismissal of 18 of the claims presented in Plaintiff's Third Amended Complaint, leaving five claims against nine defendants remaining. Id. at 16.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
On November 7, 2018, Defendants filed a Motion to Dismiss [#119] the Third Amended Complaint [#76]. Thereafter, on January 7, 2019, Plaintiff filed a Revised Third Amended Complaint with Jury Demand [#133]. On January 10, 2019, Plaintiff filed a Motion for Leave to Amend and Supplement Complaint Pursuant to Rule 15 [#134]. The Court granted Plaintiff leave to file a Fourth Amended Complaint by Order [#136] of January 17, 2019. The Order [#136] directed the Clerk to re-file Plaintiff's Revised Third Amended Complaint [#133] as a separate docket entry titled Plaintiff's "Fourth Amended Complaint" and to update the caption to include the additional Defendants that Plaintiff sued. Finally, the Order [#136] denied as moot Defendants' Motion to Dismiss [#119] regarding the Third Amended Complaint.
The Fourth Amended Complaint [#137] was filed on January 17, 2019. This is the operative complaint that Defendants now seek to dismiss. The Fourth Amended Complaint is 48 pages long, sues 24 Defendants, and asserts 17 additional claims along with Plaintiff's five remaining claims from the June 18, 2018 Order [#80].
These claims number from Three to Fifty-Two. Plaintiff appears to have retained the numbering from the Third Amended Complaint for the five claims the Court did not dismiss and then numbered the new claims starting at Thirty-One. However, there are no claims numbered Thirty-Seven through Thirty-Nine, Forty-Seven, and Forty-Nine.
The Motions to Dismiss [#174, #191] are filed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Motion to Dismiss [#174] argues that certain of the claims are subject to dismissal because, although they may involve new defendants and events, they are minimally-refashioned versions of claims the Court has previously dismissed. Id. at 3. It further argues that certain of Plaintiff's claims are subject to dismissal pursuant to Rule 12(b)(1) for reasons of Eleventh Amendment immunity and mootness. Id. Additionally, the Motion to Dismiss [#174] argues that "despite numerous chances to allege sufficient facts as well as direction from the Court as to what allegations are required to plead various claims, Plaintiff fails to state any plausible claim for relief in his Fourth Amended Complaint." Id. The Lobanov-Rostovsky Motion [#191] seeks to dismiss the two claims asserted against that Defendant (Claims Thirty-Five and Thirty-Six). Those claims assert that restrictions imposed by the Sex Offender Management Board ("SOMB") in Plaintiff's sex offender treatment contract under the Sex Offender Treatment and Management Program ("SOTMP") are unconstitutional. Defendant Lobanov-Rostovsky asserts that these claims should be dismissed under the Eleventh Amendment and for failure to state a claim upon which relief can be granted. Id. at 2-3.
The Court notes that Plaintiff responded to the Motions to Dismiss [#174, #191] by submitting documents and declarations outside the pleadings [#194-1, #196]. The Court finds that these documents are not necessary to and do not impact resolution of the Motions [#174, #191], and they will not be considered. Accordingly, there is no need to convert the Motions to Dismiss [#174, #191] into motions for summary judgment. See Fed. R. Civ. P. 12(h).
By Order of May 21, 2019 [#195], District Judge Raymond Moore granted Plaintiff's "Motion to Withdraw Claims for the Department of Justice to Pursue Claims" [#193]. The following claims have now been dismissed without prejudice: Claims Eighteen, Twenty, Forty, Forty-Two, Forty-Three, Forty-Four, Forty-Five, and Fifty-One in their entirety, and Claim Fifty-Two only as it pertains to allegations against the Limon Correctional Facility. [#195], at 2. The following Defendants who were named in the Fourth Amended Complaint [#137] have been dismissed without prejudice: Steven Cox, Gary Ward, Trisha Kautz, Kelsey Dillinger, John Doe, James Falk, Rhonda Belcher, Daniel Scellenger, Brent Reed, and Nicole Blatnick. Id.
II. Legal Standard
A. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss pursuant to Rule 12(b)(1) attacks a court's subject matter jurisdiction. The determination of a court's jurisdiction over the subject is a threshold question of law. Madsen v. United States ex. rel. U.S. Army Corps of Engineer, 841 F.2d 1011, 1012 (10th Cir.1987). The objection that a federal court lacks subject matter jurisdiction pursuant to Rule 12(b)(1) may be raised by a party, or by a court on its own initiative, at any stage in the litigation. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). If at any time, the Court determines that it lacks subject matter jurisdiction, the Court must dismiss the action. Fed. R. Civ. P. 12(h)(3); Arbaugh, 546 U.S. at 506.
A 12(b)(1) motion may take two forms: a facial attack or a factual attack on the complaint. When reviewing a facial attack on the complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a complaint pursuant to Rule 12(b)(1), the Court does not presume the truthfulness of the allegations but "resolve(s) disputed jurisdictional facts." Id. at 1003. In doing so, the Court has wide discretion to allow affidavits and other documents. Id.
B. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). That said, "'[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Khalik, 671 F.3d at 1192 (citation and internal quotation marks omitted). "While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in [his] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim." Id.
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 556 U.S. at 678. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (citation omitted).
C. Qualified Immunity
"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Herrera v. City of Alburquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (citation omitted). When qualified immunity is asserted, a plaintiff must show that: "(1) the defendant violated a constitutional right and (2) the constitutional right was clearly established." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). "The determination of whether a violation occurred under the first prong of the qualified immunity analysis turns on the substantive law regarding that right." Davis v. City of Aurora, 705 F. Supp. 2d 1243, 1255 (D. Colo. 2010). "With regard to the second [prong], the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful under the circumstances presented." Herrera, 589 F.3d at 1070 (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1155 (10th Cir. 2008)).
III. Analysis
The majority of the claims are analyzed in connection with the Motion to Dismiss [#174]. The Lobanov-Rostovsky Motion [#191] is analyzed in connection with the claims asserted against that Defendant (Claims Thirty-Five and Thirty-Six), and the section analyzing Eleventh Amendment immunity addressed immediately below. A. Eleventh Amendment Immunity and Ex Parte Young
Both the Motions to Dismiss [#174, #191] assert that Defendants are immune from liability for monetary damages in their official capacities, and that these claims should be dismissed pursuant to Rule 12(b)(1). [#174], at 6-7; [#191], at 4-5. The Supreme Court has held that "[s]uits against state officials in their official capacit[ies] should be treated as suits against the state." Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); see also Duncan v. Gunter, 15 F. 3d 989, 991 (10th Cir. 1994) (state officers sued in their official capacity are not "persons" subject to suit under 42 U.S.C. § 1983). Here, the official capacity claims against the individuals are construed as claims asserted against the CDOC, an agency of the state. See Johnson v. Swibas, No. 14-cv-02258-BNB, 2014 WL 55109030, at *2 (D. Colo. Oct. 31, 2014). Pursuant to the Eleventh Amendment, the Court lacks subject matter jurisdiction to adjudicate an action brought by a citizen of a state against the state itself, its agencies, or its officials in their official capacities for monetary relief. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th Cir. 1995). Colorado has not waived Eleventh Amendment immunity for § 1983 claims. Dep't of Pub. Affairs v. Colo. Dep't of Corr., 216 F. Supp. 2d 1167, 1169 (D. Colo. 2002).
Plaintiff argues, however, that Eleventh Amendment immunity has been waived for his claims because they involve a contract, and immunity for contract actions is unavailable under the Colorado Governmental Immunity Act ("CGIA"). Response [#194], at 17. This is incorrect. Colorado has not waived Eleventh Amendment immunity for breach of contract claims asserted in federal court. See Norris v. Univ. of Colorado, 362 F. Supp. 3d 1001, 1021 (D. Colo. 2019); Doe v. Univ. of Colorado, 255 F. Supp. 3d 1064, 1086 (D. Colo. 2017); see also Greiss v Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988).
Moreover, the Court rejects Plaintiff's argument that he has pled a viable contract claim. In his Surreply [#203], Plaintiff points to specific portions of the Fourth Amended Complaint [#137] that he argues plead a breach of contract. Id. at 2-3. While Plaintiff asserts that the case consists of multiple claims involving contracts, and refers in various claims to contracts that Plaintiff claims were breached, the contract allegations were all made in reference to alleged constitutional violations. See id. at 7, 11, 20-24 (referring to SOTMP contracts in connection with violations of the First, Eighth and Fourteenth Amendments, and stating that Plaintiff was forced to sign a new SOTMP contract "under duress while deprived of due process"). Plaintiff's characterization of his claims as involving a breach of contract does not transform them into contract actions. See Patzer v. City of Loveland, 80 P.3d 908, 910 (Colo. App. 2003) ("In evaluating a claim under the [C]GIA, the form of the complaint is not determinative. . . ."). Moreover, to the extent a SOTMP treatment contract can be subject to a breach of contract claim, contract claims are not constitutional claims that may be brought pursuant to § 1983. Pioneer Nat. Res. Co. v. Gatza, No. 05-CV-02434-CBS, 2006 WL 1547310, at *4 (D. Colo. June 2, 2006).
Plaintiff also does not plausibly plead a contract claim as he does not state the elements of such a claim in his Fourth Amended Complaint [#137], even in a "threadbare" fashion, nor does he provide factual allegations to support the elements of such a claim. See Iqbal, 556 U.S. at 678.
The Lobanov-Rostovsky Motion [#191] also asserts that while there is an exception under the doctrine of Ex parte Young, 209 U.S. 123, 158-59 (1908), for "official-capacity actions for prospective relief," Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989), this exception is not applicable to Plaintiff's official-capacity claims for declarative and injunctive relief against Lobanov-Rostovsky. This is because Lobanov-Rostovsky had no duty to enforce the challenged restrictions in Plaintiff's SOTMP treatment contract that are at issue in the claims asserted against him (Claims Thirty-Five and Thirty-Six). Lobanov-Rostovsky Motion [#191], at 5-6.
"'Under Ex parte Young, the state officer against whom a suit is brought must have some connection with the enforcement of the act that is in continued violation of federal law.'" Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007) (citation and internal quotation marks omitted). Here, the Court agrees that Plaintiff has not and cannot demonstrate that Lobanov-Rostovsky, purported to be "chairman" of the SOMB or an "SOMB agent[ ]" (Fourth Amended Complaint [#137] at 5, 24) has any enforcement duties with respect to the SOMB standards or the authority to enforce the provisions of the SOTMP treatment contract Plaintiff challenges. There are two reasons for this.
First, Plaintiff has not shown and cannot demonstrate that SOMB itself has any enforcement authority over SOTMP treatment contracts. SOMB is an entity statutorily charged with developing, prescribing, and revising standards associated with sex offender identification, evaluation, treatment, and progress in treatment. Colo. Rev. Stat. § 16-11.7-103(4). By contrast, SOTMP is the "specialized sex offense specific treatment" program administered by CDOC for CDOC offenders. See [#174-3], at 1. Treatment required by the Sex Offender Lifetime Supervision Act ("SOLSA") is "administered by the SOTMP[.]" Allen v. Clements, 930 F. Supp. 2d 1252, 1260 (D. Colo. 2013). SOTMP treatment must conform to the standards created by SOMB, but SOMB does not perform treatment, including enforcing specific treatment contracts. See Colo. Rev. Stat. § 16-11.7-102(4).
Second, Plaintiff fails to demonstrate that Lobanov-Rostovsky, as a purported "SOMB agent[ ]" or "chairman", has any responsibility for developing or enforcing SOMB standards. Colorado law provides that the SOMB board has the statutory power to develop standards and guidelines. Colo. Rev. Stat. § 16-11.7-103(4). There is no statutory authority for board members or the chairman individually to develop such standards and guidelines or to enforce them. Id. Accordingly, Plaintiff's conclusory assertions that Lobanov-Rostovsky is somehow capable of acting on behalf of SOMB is insufficient to support an official capacity claim against him. See Barrett v. Univ. of New Mexico Bd. of Regents, 562 F. App'x 692, 694 (10th Cir. 2014) (Ex parte Young exception inapplicable to plaintiff's claims against board members as "individual Board members are not empowered to act individually, but must act as a 'body corporate.'").
It is therefore recommended that the Motions [#174, #191] be granted to the extent that Plaintiff's claims seek monetary relief against the individual Defendants in their official capacities, and that such claims be dismissed without prejudice for lack of subject matter jurisdiction. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) ("[W]here the district court dismisses an action for lack of jurisdiction, . . . the dismissal must be without prejudice.") (citations omitted)). It is further recommended that the Lobanov-Rostovsky Motion [#191] be granted as to Plaintiff's claims for declarative and injunctive relief against Lobanov-Rostovsky in his official capacity. Finally, as Defendant Lobanov-Rostovsky was sued only in his official capacity and not in his individual capacity (Fourth Am. Compl. [#137], at 5), it is recommended that Lobanov-Rostovsky be dismissed from this case.
B. Claims That Were Previously Dismissed
The Court notes that while there is some confusion as to this issue, the Fourth Amended Complaint [#197] appears to present a facial challenge to the constitutionality of the SOTMP, in addition to challenges to Plaintiff's treatment in the SOTMP. See Resp. [#194] at 6 (the "SOTMP Treatment Contract, on its face and as applied, is preempted by federal law and . . . violates the Supremacy Clause. . . ."); id. at 10-12 (alleging the SOTMP violates the First Amendment); id. at 27-31 (alleging the SOTMP violates the Eighth Amendment); cf. id. at 2 (Plaintiff "is in no way challenging the constitutionality of Treatment for sex offenders") (emphasis in original); id. at 27 (Plaintiff "does not argue that SOMB, SOTMP is [sic] facially invalid, but rather assert [sic] that SOTMP sex offender contract requirements, as applied to him, violates [sic] the Eighth Amendment's proscription against cruel and unusual punishment and the Fourteenth Amendment's requirements of procedural and substantive due process"). To the extent Plaintiff is asserting a facial challenge to the constitutionality of the SOTMP, it must be dismissed based on Magistrate Judge Gordon P. Gallagher's previous Order [#80] of July 18, 2018. Magistrate Judge Gallagher correctly found that treatment under the SOTMP "already has been determined to be constitutional and in furtherance of a legitimate penological interest." Id. at 5-6 (citing cases).
Plaintiff's "as applied" constitutional challenges, based on his own treatment in the SOTMP, will be addressed further below on the merits.
Magistrate Judge Gallagher also dismissed several other categories of claims which may be implicated in Plaintiff's Fourth Amended Complaint [#137]: (1) claims involving disagreements with therapists regarding treatment; (2) alleged harassment by Defendant Borrego-Gibbs in connection with discussing Plaintiff's treatment in front of other inmates; (3) alleged conduct by treatment therapists during parole proceedings; and (4) challenges to a decision of the Parole Board due to allegedly improper actions by treatment program therapists or some other alleged inadequate procedure. Order [#80] at 6-8, 10. That Order [#80] also found that Plaintiff has no liberty interest in release on parole, and that "there is no constitutional right to parole created by Colorado law." Id. at 9.
To the extent that Plaintiff reasserts such claims in Claims Eleven, Thirty-One, Thirty-Two, or Thirty-Three (or any other claim), the Court finds that Plaintiff has not corrected the deficiencies noted in Magistrate Judge Gallagher's Order [#80]. Accordingly, it is recommended that such claims be dismissed with prejudice for failure to state a claim. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (where a complaint fails to state a claim, and the dismissal is on the merits of the complaint, "it will . . . ordinarily be entered with prejudice").
The Court further recommends in Section III.L, infra, that leave to amend should be denied as futile.
C. Mootness of Claims Regarding Conditions of Confinement at Prior Facilities
The Motion to Dismiss [#174] next asserts that Plaintiff's claims seeking injunctive or declaratory relief relating to conditions of confinement at a facility other than SCF should be dismissed as moot. Id. at 7-8. Thus, Defendants assert that a number of claims appear to relate to conditions of confinement at Colorado Territorial Correction Facility (referred to by Plaintiff as "CTCT or CTCF") and Limon Correctional Facility ("LCF"). See Fourth Am. Compl. [#137] at 8-16 (Claims 3, 7 and 11), 23-24 (Claim Thirty-Four). As Plaintiff is presently housed at SCT, Defendants argue and the Court agrees that these claims are moot. Plaintiff has not alleged any facts demonstrating a reasonable expectation that he will be transferred back to CTCF or LCF and subjected to the alleged conduct again.
Claim Fifty-Two also asserted claims that involved LCF, but that portion of the claim was dismissed. [#195].
Plaintiff argues, however, that these claims should survive because his classification is still enhanced and Plaintiff "is still suffering after effects from the SOTMP actions or inactions, which affect his custodial and facility placements. . . ." Resp. [#194], at 22-23. Plaintiff wishes to avoid "future repeated harms." Id. Plaintiff also states that he may be returned in the future to the "limited facilities who are alleged to offer ADA accessibility or the disputed SOTMP programming." Id. at 23. These arguments do not overcome Defendants' argument that the claims involving prior facilities are moot.
The Tenth Circuit has held that "[w]hen a prisoner files suit against prison officials who work in the institution in which he is incarcerated, seeking declaratory and injunctive relief on the basis of alleged wrongful conduct by those officials, and then that prisoner is subsequently transferred to another prison or released from the prison system," this raises the issue of mootness. Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011). In that situation, "courts have concluded that they are unable to provide the prisoner with effective relief," and have dismissed the claims as moot. Id. In a moot case a plaintiff no longer suffers a redressible injury. Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019). The Court finds that is the situation here. Moreover, as to Plaintiff's argument regarding future harm, "the Supreme Court [has] rejected the proposition that the prospect of deterring future harm by the defendant sufficed to overcome mootness." R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1108 (10th Cir. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)).
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to Plaintiff's claims seeking injunctive or declaratory relief relating to conditions of confinement at a facility other than Sterling Correctional Facility ("SCF"), and that these claims be dismissed with prejudice. Brereton, 434 F.3d at 1219.
D. Due Process
1. Legal Standard
Construing Plaintiff's allegations liberally at this stage of the litigation, Plaintiff appears to be asserting both procedural and substantive due process claims. To determine whether a plaintiff has been deprived of his right to procedural due process, "courts must engage in a two step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process." Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir. 1994). There are two types of substantive due process claims: "(1) claims that the government has infringed a 'fundamental' right . . .; and (2) claims that government action deprived a person of life, liberty, or property in a manner so arbitrary it shocks the judicial conscience." Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir. 2019). Plaintiff's allegations challenge executive action and therefore are "shocks the conscience" claims.
Central to both procedural and substantive due process claims is the requirement that the plaintiff have a protected interest; in this case, a liberty interest as alleged by Plaintiff. Thus, "[i]n order to determine whether a due process violation has occurred, the Court must first address whether [the] allegations establish that [the plaintiff has] a protected liberty interest." Allen v. Clements, 930 F. Supp. 2d 1252, 1264 (D. Colo. 2013). "In the prison context, the due process clause safeguards 'only a narrow range of protected liberty interests.'" Id. (quoting Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012)). "With respect to the cessation of state-mandated sex offender treatment, the due process clause protects against 'a major change in the conditions of confinement' amounting to a grievous loss." Id. (citation omitted). Inmates participating in the SOTMP "have an interest in not being terminated without due process." Id. at 1266. The Colorado Sex Offender Lifetime Supervision Act ("SOLSA) also "creates a liberty interest in treatment[,]" although "the right to treatment is not absolute or unconditional." Id. at 1264.
2. The Merit of Plaintiff's Due Process Claims
Plaintiff states that "[t]he gravamen of the complaint involves the taking of a liberty interest without any due process, by way of the defendant's [sic] utilization of a treatment contract." Resp. [#194], at 23. According to Plaintiff, he "was deprived [of] a constitutional interest in his life, liberty, or property where a required treatment contract earned him completed criteria, [and was] taken without due process of law." Id. Plaintiff further states that "the SOTMP as applied to him deprives rights of privacy and liberty, even when completion of required criteria is achieved." Id. Moreover, he avers that the "SOTMP Treatment Contract, . . . as applied, is preempted by federal law and . . . violates the Supremacy Clause, and the 1st, 4th, 8th, 9th, 10th, and 14th Amendment [sic]." Id. at 6, see also 12-13 (referencing a Fifth Amendment violation).
Plaintiff also alleged a facial challenge to treatment under the SOTMP, which was dismissed in Section III.B, supra.
From the Court's review of the Fourth Amended Complaint [#137], Plaintiff does not allege that he was terminated from treatment or that he was denied treatment that would implicate a liberty interest under the authority discussed in the previous section. Instead, Plaintiff's SOTMP contract and its perceived "breach," along with Plaintiff's treatment in the SOTMP, appear to be at the center of the due process claims asserted in Claims Three, Seven, Eleven, Thirty-One, Thirty-Two, and Thirty-Three.
Plaintiff also pleaded a due process claim in connection with medical co-pays (Claim Forty-Two), but that claim has been dismissed. See [#195].
Thus, Plaintiff asserts the following due process claims in connection with the SOTMP: (1) SOTMP criteria were taken "prior to a reclassification without due process afforded," taking Plaintiff's "completed SOMB criteria 5L . . . to a negative program status code of 5D to not meeting criteria," which allegedly deprived Plaintiff of "any progress of completion to access an aftercare code of (A) and any parole recommendation without due process" (Fourth Amended Complaint [#137], Claims Three and Seven, at 10-12, Claim Eleven at 16); (2) Plaintiff was required to repeat programming and suffered the loss of a completed program and "program compliant status," progress, or "required SOTB criteria" without due process (Claim Three at 10-11, Claim Seven at 11, Claim Eleven at 16, Claim Thirty-One at 20, Claim Thirty-Two at 21); (3) Plaintiff was put on a probation contract (Claim Eleven at 12-13, Claim Thirty-Two at 21-22); (4) Plaintiff was subjected to multiple treatment plans and was required to sign a new treatment program and/or new treatment contract (Claim Seven at 12; Claim Eleven at 13; Claims Thirty-Two and Thirty-Three at 22-23); (5) Plaintiff was removed from the incentive program (Claim Eleven at 16); and (6) Plaintiff suffered "probation retaliation" by SOTMP agents (Claim Thirty-One at 20). These claims boil down to challenges to Plaintiff's reclassification, treatment, repercussions from his treatment (such as the loss of program completion status, progress, criteria), and alleged improper actions with respect to parole hearings and Plaintiff's eligibility for parole.
To the extent Claims Thirty-Five and Thirty-Six related to certain SOTB standards assert a due process challenge, that is addressed in Section III.E.2, infra.
The Court finds, for the reasons discussed below, that Plaintiff has not shown that he has a liberty interest in connection with his claims regarding the SOTMP.
a. Reclassification and Parole Issues
First, as to reclassification, the Court finds that a prisoner generally does not have a due process interest in his prisoner classification. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976); see also People v. Ruiz, 935 P.2d 68, 69 (Colo. App. 1996) ("Because a prison inmate has no protected liberty interest in any particular security classification, due process protections are not implicated by classification decisions."). While an inmate may have a liberty interest in his initial classification as a sex offender due to the stigma attached to the label[,]" a liberty interest also does not necessarily attach to a reclassification. Hubler v. Lander, 413 F. App'x 81, 82 (10th Cir. 2011); Allen, 930 F. Supp. 2d at 1264 . As the Tenth Circuit noted, "sub-classifications within the sex offender code do not carry with them the same type of stigma since they merely indicate the inmate's readiness for participation in the treatment program." Hubler, 413 F. App'x at 82.
In Hubler, the plaintiff argued that "he had a liberty interest in his sex offender sub-classification because an adverse adjustment to the sub-classification [could] result in repercussions such as reduced eligibility for earned-time credits, a higher custody level, and a reduced likelihood of parole." 482 F. App'x at 82. The Tenth Circuit rejected this argument, finding that there were no due process protections in "discretionary awards of earned-time credits like those involved in the Colorado scheme." Id at 83. The Court also found that a potentially higher custody level did not implicate a liberty interest, and that the plaintiff "has not shown that a change to his sub-classification would necessarily make him ineligible for parole, even if it might be a factor considered by the parole board." Id. Thus, the Court dismissed the due process claim. Id.
Similar to Hubler, Plaintiff asserts that his reclassification resulted in adverse repercussions, including the denial of a parole recommendation. Plaintiff has not stated a liberty interest in this repercussion as he has not shown that the reclassification "would necessarily make him ineligible for parole[.]" 482 F. App'x at 82. Further, as to Plaintiff's due process challenges regarding parole, Magistrate Judge Gallagher correctly stated in his 2018 Order [#80] that Plaintiff has no due process violation related to his parole hearings (or the impact on parole by his treatment in SOTMP) because "Plaintiff has no liberty interest in release on parole." Id. at 9 (citing Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979)). Plaintiff also has "'no protected liberty interest in a favorable parole recommendation.'" Id. (quoting Firth v. Shoemaker, 496 F. App'x 778, 791 (10th Cir. 2012)).
Plaintiff argues that this case is distinguishable from Hubler because he "earned a liberty interest 'prior,' that was then taken resulting in the chain reaction by government-induced actions causing the reclassification." Resp. [#194], at 1-2. Plaintiff does not show, however, how that translates into a liberty interest or how this makes his case distinguishable from the holding in Hubler.
Finally, Plaintiff's due process challenges to SOTMP providers' alleged involvement with his parole hearing(s) in Claims Thirty-One and Thirty-Two were previously dismissed by Magistrate Judge Gallagher. Order [#80], at 9. To the extent that Claims Thirty-One and Thirty-Two challenge the same events or present the same issues, dismissal is appropriate on the same grounds noted in Magistrate Judge Gallagher's Order [#80].
b. Treatment Challenges, Including Loss of Program Status and Criteria
Plaintiff also challenges his treatment in the SOTMP, including that he was required to enter into a new contract and new treatment program and subjected to multiple treatment plans. In addition, Plaintiff challenges alleged repercussions he suffered in treatment such as the loss of program status, progress, and criteria, and the inability to participate in the incentive program. However, as Magistrate Judge Gallagher stated in his 2018 Order [#80], "[i]t is well-settled that Colorado's Sex Offender Lifetime Supervision Act vests discretion in the Colorado Department of Corrections 'as to what kind of treatment is "appropriate" for the offender.'" Id. at 7 (quoting Beebe v. Hall, 333 F. Supp. 2d 1011, 1016 (D. Colo. 2004)); see also Conkleton v. Raemisch, 603 F. App'x 713, 715-16 (10th Cir. 2015) (finding no constitutional violation where inmate challenged prison officials' "certification that he was not meeting the [sex offender] treatment criteria"). Moreover, an inmate in the SOTMP does not have a liberty interest in successful progress in treatment. See Loyd v. Prendergast, No. 08-cv-02182-PAB-KLM, 2009 WL 2514179, at *10 (D. Colo. Aug. 14, 2009) (rejecting argument that Plaintiff had liberty interest in connection with procedures that caused the deprivation of Plaintiff's "parole eligibility").
Here, Plaintiff is not deprived of treatment; his loss of "program completion status" simply means that treatment will take longer. Courts have held that this does not implicate a liberty interest. See Conkleton v. Zavaras, No. 08-cv-02612-WYD-MEH, 2010 WL 6089079, at 5 (D. Colo. Oct. 6, 2010). This type of delay "does not arise to the level of a 'grievous' loss." Id.; see also Allen, 930 F. Supp. 2d at 1267. Plaintiff has not shown through his allegations that the challenged repercussions are extreme, certain to increase the duration of confinement, or of indeterminate duration. Allen, 930 F. Supp. 2d at 1265.
Finally, the Court notes that Plaintiff alleges that he "refused to sign new treatment programs" and was "forced to withdraw[ ] from the disputed treatment contract." Fourth Am. Comp. [#137], ¶¶ 29, 37. To the extent that Plaintiff decided "not to participate" in sex offender treatment program, resulting in a reclassification and loss of privileges, there is also no constitutional violation. See McKune v. Lile, 536 U.S. 24, 39 (2002) (demotion in prison level and loss of certain privileges due to plaintiff's "decision not to participate" in sex offender treatment was not a constitutional violation).
While Plaintiff implies in his Response [#194] that his withdrawal may not have been voluntary but "defendant driven" (id. at 21), he provides no facts and cites no allegations to support that.
3. Conclusion
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to the due process claims (both the procedural and substantive due process claims), because Plaintiff has failed to establish a liberty interest in connection with the challenges he has made regarding the SOTMP. It is further recommended that Claims Seven, Eleven, Thirty-One, Thirty-Two, and Thirty-Three be dismissed with prejudice to the extent they assert due process claims. Brereton, 434 F.3d at 1219. Moreover, as Plaintiff has not shown the violation of a constitutional right, it is recommended that the Defendants be granted qualified immunity in their individual capacity. See Gross v. Pirtle, 245 F.3d 1151, 1158 (10th Cir. 2001).
Because the Court has found that dismissal is warranted on this ground, it has not further considered the merits of the due process claims, the argument that some of the due process claims regarding the SOTMP are barred by the statute of limitations, or whether the due process claims are barred as to some of the Defendants because Plaintiff failed to show their personal participation.
E. Other Claims Involving the SOTMP
1. First Amendment Claims Regarding the SOTMP
Plaintiff states in his Response [#194] that he asserts a First Amendment violation in connection with free speech in regard to his treatment in the SOTMP. See Id. at 10-13. While Plaintiff references the First Amendment in a number of claims in the Fourth Amended Complaint [#137], it is not clear from Plaintiff's allegations what claim(s) this alleged First Amendment violation are asserted in. This alone is grounds to dismiss the First Amendment free-speech challenge, as conclusory allegations do not state a claim. Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995).
To the extent Plaintiff makes First Amendment challenges as to the SOMB standards, that is addressed in Section III.E.2, infra.
Moreover, the Court finds that any restrictions in speech in connection with the SOTMP are reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987) ("when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests"). As grounds for his free speech claim(s), Plaintiff references communications to his therapists and not being able to speak freely on issues "without fear of penalty, probation, reprisal, retaliation, and/or removal from treatment." Resp. [#194], at 11. This does not, however, state a plausible violation of Plaintiff's First Amendment rights. "The participation of sex offenders in rehabilitative programs has been recognized by the Supreme Court as a legitimate penological interest." Doe v. Heil, 781 F. Supp. 2d 1134, 1140 (D. Colo. 2011), aff'd, 533 F. App'x 831 (10th Cir. 2013). The Court finds that communications with SOTMP therapists and further treatment or probation imposed by the therapists related to the communications are reasonably related to the legitimate penological interest of rehabilitation and the need for the inmate's acceptance of responsibility, McKune, 536 U.S. at 34, as well as "ensur[ing] the safety of the community and the success of the offender in treatment." United States v. Behren, 65 F. Supp. 3d 1140, 1157 (D. Colo. 2014).
Accordingly, it is recommended that the Motion to Dismiss [#174] be granted to the extent Plaintiff is asserting First Amendment free speech violations in connection with his treatment in the SOTMP, and that these claims be dismissed with prejudice for failure to state a claim. Brereton, 434 F.3d at 1219. Moreover, as Plaintiff has not shown the violation of a constitutional right, it is recommended that Defendants be granted qualified immunity as to these claims in their individual capacity.
2. Claims Thirty-Five and Thirty-Six Challenging Restrictions in the Sex Offender Treatment Contract
Claims Thirty-Five and Thirty-Six asserted against Lobanov-Rostovsky assert that two particular restrictions in Plaintiff's sex-offender treatment contract are unconstitutional. See Fourth Am. Compl. [#137], at 24-26. The challenged restrictions purportedly (1) limit Plaintiff from associating with persons with children under the age of 18 unless approved in advance; and (2) bar him from placing personal ads seeking romantic relationships. Id. Plaintiff asserts that these "restrictions" or "standards" are unconstitutional and allow "control of plaintiff versus monitoring. . . ." See id. and ¶¶ 94, 101. Plaintiff further asserts that these restrictions violate his First Amendment right to association, the Eighth Amendment, and Fourteenth Amendment due process rights. Id. at 24-26. Plaintiff seeks a monetary damage award and declaratory or injunctive relief in the form of removal of these standards from SOTMP treatment contracts. Id.
Claims Thirty-Five and Thirty-Six are construed by the Court as asserting challenges to the standards created by the SOMB. To the extent these claims are brought against Lobanov-Rostovsky, the official capacity claim against Lobanov-Rostovsky was dismissed in Section III.A, supra. As Plaintiff did not assert an individual capacity claim against Lobanov-Rostovsky, the Court previously recommended that Lobanov-Rostovsky be dismissed from the case. Id. Plaintiff asserts, however, that "all defendants . . . were personally involved in the alleged constitutional, statutory violations." Fourth Am. Compl. [#137], at 8, 43. Thus, the Court addresses the merits of Claims Thirty-Five and Thirty-Six, and finds that Plaintiff fails to state a plausible violation of his constitutional rights in connection with these claims.
First, the Court agrees with the argument in the Lobanov-Rostovsky Motion [#191] that Plaintiff cannot demonstrate that the restrictions limiting his dating or romantic relationships imposed in the SOTMP treatment contract violate Plaintiff's First Amendment right to free association. Id. at 9. This Court has held that "[w]hile in [sex offender] treatment, it is reasonable and relevant for treatment providers to closely review dating relationships, which potentially may involve sex." United States v. Behren, 65 F. Supp. 3d 1140, 1157 (D. Colo. 2014). Similar provisions have been found to be constitutionally valid. See id. (finding provision limiting dating of persons with children "not, on its face, a greater deprivation of liberty than is necessary nor is it necessarily an undue infringement of the right of association, a right which routinely and necessarily is severely limited by a sentence in a criminal case"). And Plaintiff has cited no authority that this standard violates constitutional rights.
Second, Plaintiff's allegations do not plausibly demonstrate that the SOMB restrictions, or any actions of Defendants related to those restrictions, violate his Eighth Amendment rights. Plaintiff's allegations are entirely conclusory and do not address how the Eighth Amendment was violated in connection with this claim. Moreover, sex offender treatment generally does not violate the Eighth Amendment. See Quintana v. Doe, No. 09-CV-00946-CMA-KLM, 2010 WL 2650047, at *6 (D. Colo. Apr. 14, 2010) ("Losing certain privileges as the consequence of CDOC classification as a sex offender does not amount to cruel and unusual punishment."), report and recommendation adopted in part, rejected in part on other grounds, No. 09-CV-00946-CMA-KLM, 2010 WL 2650052 (D. Colo. June 30, 2010). The Court also finds that the particular limitations Plaintiff challenges within his contract are not so objectively severe that they rise to the level of an Eighth Amendment violation. See Allen, 930 F. Supp. 2d at 1263-64. Instead, these restrictions reasonably relate to legitimate penological interests of "ensur[ing] the safety of the community and the success of the offender in treatment." Behren, 65 F. Supp. 3d at 1157.
Third, Plaintiff fails to state a plausible claim of violation of his due-process rights in connection with these standards. Plaintiff appears to assert that the SOTMP treatment contract restrictions deprive him of the right of free association without due process. Assuming the liberty interest at stake is Plaintiff's right to freedom of association, Plaintiff's claim nonetheless fails. "'[F]reedom of association is among the rights least compatible with incarceration.'" Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th Cir. 2004) (citation omitted). "Accordingly, the Constitution allows prison officials to impose reasonable restrictions" on the freedom of association. Id. The Court finds that the restrictions Plaintiff challenges meet the standard set forth in Turner, as it is "reasonably related to legitimate penological interests." 482 U.S. at 89. The Court agrees with Defendants that the particular restrictions on relationships with persons with children under the age of 18 and on placing ads for romantic relationships are reasonably related to the legitimate penological interests of protecting children from sex offenders as well as facilitating sex offenders' rehabilitation. See Wirsching, 360 F.3d at 1200. Accordingly, the Court finds that Plaintiff fails to state a plausible claim that his due process or association rights have been violated by the challenged treatment conditions in his SOTMP treatment contract.
It is therefore recommended that the Lobanov-Rostovy Motion [#191] be granted as to Claims Thirty-Five and Thirty-Six, and that these claims be dismissed with prejudice for failure to state a claim. Brereton, 434 F.3d at 1216. Moreover, as the Court has addressed all the arguments in the Lobanov-Rostovsky Motion [#191] in this section and Section III.A, supra, it is recommended that the Lobanov-Rostovsky Motion [#191] be granted in its entirety. F. Equal Protection Assertion in Claim Three
The Court addresses the equal protection claim asserted in Claim Fifty in Section III.J.2, infra.
In Claim Three, Plaintiff appears to assert that he was discriminated against as a convicted sex offender in comparison to other non-sex offenders because he is required to "repeat program and suffer the loss of completed program, progress or criteria." See Mot. Dismiss [#174] at 12 (citing Fourth Am. Compl. [#137] at ¶ 12). Defendants argue that this does not pass muster for an actionable equal protection claim. Id. at 12-13. The Court agrees.
The Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall . . . deny any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. The Equal Protection Clause mandates that the government treat similarly situated people alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff does not allege in this claim that he was deprived of a fundamental right or that he is a member of a suspect class. Thus, in order to state an equal protection claim, Plaintiff "must allege that he was 'similarly situated' to other inmates who were treated differently, and that the difference in treatment was not 'reasonably related to a legitimate penological purpose.'" Matthews v. Wiley, 744 F. Supp. 2d 1159, 1174 (D. Colo. 2010) (quoting Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006)).
Plaintiff has failed to show that either requirement is satisfied. First, as Defendants note, Plaintiff fails to present any allegations that he was treated differently from other similarly situated inmates, i.e., other convicted sex offenders that voluntarily withdrew from SOTMP. See Mot. Dismiss [#174], at 12. Further, Plaintiff's allegation that as a sex offender he received unequal treatment to inmates who are not sex offenders (Fourth Amended Complaint [#137], at 10, ¶ 12) is insufficient, because Plaintiff is, by definition, not similarly situated to those other inmates because of his sex offender status. Plaintiff's claim also fails because he does not provide any specific comparator. Owen v. Medina, No. 12-cv-00094-WJM-CBS, 2012 WL 7800837, at *7 (D. Colo. Dec. 18, 2012); see also Nunn v. Relich, No. 15-cv-02166-GPG, 22015 WL 12857322, at *3 (D. Colo. Oct. 7, 2015) ("Mr. Nunn's vague and conclusory assertions that Defendants treated him differently from persons who were similarly situated, without specific supporting factual allegations, fail to state an arguable equal protection violation") (citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1323 (10th Cir. 2010)).
Plaintiff further fails to allege facts suggesting that the second prong of an equal protection claim is met. Plaintiff's allegations, if proven, fail to establish that his status as a sex offender and treatment in the SOTMP, or the difference in treatment between sex offenders and non-sex offenders, is irrational or arbitrary and not in furtherance of a legitimate governmental interest. See Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir. 1996). This Court has already recognized that the State has a rational and legitimate penological interest in the treatment of sex offenders. Order [#80], at 5-6; see also White v. People, 866 P.2d 1371, 1375 (Colo. 1994) ("Requiring a sex offender to participate in a [sex offender treatment program] as a precondition to any grant of the privilege of parole does not violate the Equal Protection Clause.").
The Court also finds that Plaintiff fails to show personal participation by any of the Defendants in the alleged equal protection violation. Plaintiff offers no more than vague, broad, and conclusory allegations of differential treatment, without providing any factual allegations to link this purported unconstitutional treatment to any conduct by a Defendant. Fourth Am. Compl. [#137] at 8, 10 ¶ 12. This is insufficient to support a claim under 42 U.S.C. § 1983. Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) ("Personal participation is an essential allegation in a § 1983 claim.").
Finally, as Plaintiff has failed to show the violation of a constitutional right, any Defendants sued in this claim in their individual capacity are entitled to qualified immunity. See Taylor v. City and Cty. of Denver, No. 97-1170, 1999 WL 40969, at *2 (10th Cir. 1999) ("without an underlying deprivation of federal or constitutional rights, plaintiff's § 1983 claims . . . fail to state a claim").
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to Plaintiff's equal protection claim in Claim Three for failure to state a claim or to show personal participation by the Defendants, and that portion of Claim Three be dismissed with prejudice. Brereton, 434 F.3d at 1216. It is further recommended that qualified immunity be granted as to this claim as to any Defendants sued in their individual capacity.
G. Retaliation Claims
In Claims Seven and Eleven, Plaintiff asserts that Defendants retaliated against Plaintiff for filing grievances and engaging in legal processes by such things as stripping Plaintiff of his completed treatment contract and SOMB criteria, putting him on a probation contract, reclassifying Plaintiff, and transferring him to SCF. See, e.g., Fourth Am. Compl. [#137] at ¶¶ 21, 25, 26, 28, 35, 36, 45-46, 54-55. Defendants argue that Plaintiff fails to state a claim of unlawful retaliation. Mot. Dismiss [#174], at 13-15.
The Tenth Circuit has held that "'[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights.'" Peterson v. Shank, 149 F.3d 1140, 1144 (10th Cir. 1998) (citation omitted). "'This principle applies even where the action taken in retaliation would be otherwise permissible.'" Id. (citation omitted). To establish a First Amendment retaliation claim, "a plaintiff must show that (1) he was engaged in constitutionally protected activity, (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct." Nielander v. Bd. of Cty. Commissioners, 582 F.3d 1155, 1165 (10th Cir. 2009). However, as noted by the Peterson court:
. . . it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role. Obviously, an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity. Accordingly, a plaintiff "must prove that 'but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place.". . . An inmate claiming retaliation must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights."149 F.3d at 1144 (citations omitted).
Defendants do not dispute that the first two elements are met. An inmate's filing of internal prison grievances constitutes protected activity under the first element. See Banks v. Katzenmeyer, 645 F. App'x 770, 772 (10th Cir. 2016). The Court will assume for purposes of the Motion to Dismiss [#174] that the second element has been satisfied, i.e., that Plaintiff has plausibly pled allegations sufficient to show that Defendants' actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, including the fact that he was allegedly denied program completion status and a parole recommendation. Fourth Am. Compl. [#137], ¶¶ 25, 46. However, the Court finds that Plaintiff has not shown that "but for" the retaliatory motive, the disciplinary actions that he complains of would not have occurred. Plaintiff fails to allege specific facts linking Defendants' actions to Plaintiff's protected activities. Peterson, 149 F.3d at 1144.
Thus, Plaintiff names Defendants Romero, Trujillo, Borrego-Gibbs, Shain, and Stansell in his retaliation claims. Fourth Am. Compl. [#137], ¶¶ 14-16, 21, 25-26, 28, 31, 42-43. The only reference to the alleged retaliatory events occurring as a result of the protected activity (grievances) is as follows. First, Plaintiff alleges that he "was targeted for probation" by Borrego-Gibbs for filing grievances and other related conduct, which resulted in the requirement that he sign a new treatment plan. Id. ¶¶ 28, 29. Second, Plaintiff alleges that he "suffered immediate retaliatory actions by . . . Kristy Stansell who willfully made false statements of plaintiff's alleged 'disruptive behavior' for 'talking about filing grievances. . . ." Id., ¶ 42. Third, Plaintiff alleges that he "was injured by false statements of Kristy Stansell who flagrantly made and used threats by her intentional actions, resulting in plaintiffs [sic] loss of properties, privilege, program compliant status, completed programming and criteria. . . for exercising his free speech and use of the grievance procedure. . . ." Id. ¶ 46.
Through the above allegations, Plaintiff has not shown or plausibly pled that "but for" the retaliatory motive, the actions that he complains of would not have occurred. Plaintiff fails to present specific facts affirmatively linking Defendants' actions to Plaintiff's protected activities. Moreover, while Plaintiff asserts that he was "targeted for probation" by Borrego-Gibbs for filing grievances, Fourth Amended Complaint [#137], ¶¶ 28-29, and that Stansell retaliated against Plaintiff for "using the grievance process," id. ¶ 46, Plaintiff does not specify any particular grievances or other protected activity that motivated them. Plaintiff has not stated a plausible claim of retaliation as he does not identify the specific grievances or protected activity that he contends motivated Defendants to retaliate against him, or provide dates or details of such allegedly protected activities to show that the alleged retaliatory actions were in "close proximity to the protected activity." Sheratt v. Utah Dep't of Corrections, 545 F. App'x 744, 747-48 (10th Cir. 2013) ("Sheratt maintains that prison officials retaliated against him . . . , but Sheratt nowhere indicates what grievances he had previously filed that invoked that action or their proximity in time to the alleged retaliatory action;' "Sheratt's conclusory allegation that these events occurred because he threatened to sue for retaliation are insufficient to state a claim."); see also Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) ("'Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.'") (citation omitted).
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to the First Amendment retaliation claims, and that the portion of Claims Seven and Eleven alleging retaliation be dismissed with prejudice. Brereton, 434 F.3d at 1216. Moreover, as Plaintiff has failed to state a constitutional violation, it is recommended that any Defendants sued in their individual capacity in connection with these claims be granted qualified immunity.
H. Eighth Amendment Claims
Plaintiff previously dismissed some claims that implicated the Eighth Amendment, including Claims Eighteen, Twenty, Forty, Forty-Three, and Forty-Five. See [#193, #195]. Nonetheless, Plaintiff asserts an Eighth Amendment violation in most of his remaining claims; namely, Claims Three, Seven, Eleven, Thirty-One, Thirty-Two, Thirty-Three, Thirty-Four, Thirty-Six, and Fifty-Two. The Eighth Amendment allegations in Claim Thirty-Six were dismissed in Section III.E.2, supra. Thus, the Court turns to the remaining Eighth Amendment claims.
The Motion to Dismiss [#174] addressed the Eighth Amendment only as to claims that have been dismissed (Claims Eighteen, Twenty, Forty, Forty-Three, and Fifty-Two). Id. at 15-19, 24-24. Nonetheless, the Court applies Defendants' Eighth Amendment analysis to Plaintiff's remaining claims asserting a violation of that amendment.
The Court first finds that Plaintiff has not stated an Eighth Amendment violation as to actions taken in connection with his SOTMP treatment. Plaintiff alleges in that regard that he lost program status completion and criteria that required him to repeat programming and enter into new contracts, and that this caused Plaintiff to endure "undue hardships" and "probation retaliation." See Fourth Am. Compl. [#137], Claims Seven, Eleven, Thirty-One, Thirty-Two, and Thirty-Three. "Losing certain privileges" as the consequence of sex offender treatment does not, however, violate the Eighth Amendment. Quintana, 2010 WL 2650047, at *7. Moreover, while Plaintiff alleges "undue hardships," he has not pleaded any allegations that show his SOTMP treatment resulted in conditions posing a serious risk of harm. Farmer v Brennan, 511 U.S. 825, 834 (1994). Accordingly, it is recommended that the Eighth Amendment claims asserted in Claims Seven, Eleven, Thirty-One, Thirty-Two, and Thirty-Three be dismissed with prejudice for failure to state a claim.
The Court construes the remaining allegations as asserting deliberate indifference to Plaintiff's serious medical needs and the failure to protect Plaintiff. Thus, the Court turns to those issues.
A. Serious Medical Needs
Claim Fifty-Two asserts that "all defendants" have denied "known needed accommodations and medically needed restrictions," that this has "endanger[ed] plaintiff's life and safety" and resulted in repeated injuries to Plaintiff "as a person with known medically needed restrictions" and disabilities, and that Defendants acted "with malice or willfulness recklessness or with indifference to plaintiff's rights as a person with known medically needed restrictions" and disabilities. Fourth Am. Compl. [#137], ¶¶ 154, 163, 166-67, 182, 285-86. Plaintiff also states that he is challenging the adequacy of the treatment involved. Resp. [#194], at 14.
A prison official's deliberate indifference to an inmate's serious medical needs is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 10 (1977)). "In order to state a cognizable claim [of medical mistreatment under the Eighth Amendment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. Such claims involve both an objective and a subjective component. Mata, 427 F.3d at 751.
As to the objective component, the prisoner must show "that the deprivation was in fact 'sufficiently serious.'" Mata, 427 F.3d at 751 (quoting Farmer, 511 U.S. at 834). A medical need is sufficiently serious "'if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Id.
As to the subjective component, the prisoner must show "a culpable state of mind" by the prison officials. Mata, 427 F.3d at 751. This requires that "the official 'knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and . . . must also draw the inference.'" Id. (quoting Farmer, 511 U.S. at 837). "The subjective component is 'akin to recklessness in the criminal law,' where, to act recklessly, 'a person must consciously disregard a substantial risk of serious harm.'" Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837) (internal quotations and further citation omitted). Negligence is not enough. "'[A]n inadvertent failure to provide adequate medical care' does not rise to a constitutional violation." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Estelle, 429 U.S. at 105-06)).
Here, the Court finds that Plaintiff's allegations do not satisfy either the objective or the subjective component of deliberate indifference. First, as to the objective component, Plaintiff does not plead any allegations detailing his medical need(s) or disability, or what accommodations he requires. Plaintiff also does not show that he has been diagnosed by a medical doctor as needing treatment or that his medical needs were such that it would be obvious to a layperson that he needed medical attention. Mata, 427 F.3d at 751. Moreover, while Plaintiff states that he has been deprived of "known needed accommodations and medically needed restrictions," (Fourth Am. Compl. [#137], ¶ 154) Plaintiff does not state what these "known" accommodations and medical restrictions are. While Plaintiff disputes this in his Response [#194], arguing that the Fourth Amended Complaint [#137] refers to his CDOC Medical Files (id. at 18, ¶ 57), Plaintiff does not identify what is in the Medical Files. Accordingly, the Court finds that Plaintiff's allegations do not satisfy the objective component of the deliberate indifference test.
The Court further finds that Plaintiff's allegations of personal participation by the Defendants are insufficient to not only meet the minimal personal participation requirement in § 1983 actions, Bennett, 545 F.2d at 1262-63, but also the culpable state of mind required to show deliberate indifference. See, e.g., Fourth Am. Compl. [#137], at 8 and ¶ 164; Resp. at 19-22. Thus, Plaintiff has not pleaded what any particular Defendant did in connection with the alleged deprivation of his accommodations or medical needs/restrictions. Nor has he shown that Defendants were aware of facts from which the inference could be drawn that a substantial risk of harm existed, let alone that they actually drew that inference. The allegations are entirely conclusory, and do not provide the factual detail needed to establish that Defendants acted recklessly in regard to Plaintiff's medical needs.
Also, as the Motion to Dismiss [#174] points out at page 18, Defendants' actions in denying Plaintiff's unidentified "medical restrictions and/or accommodations" are rationally explained in the Fourth Amended Complaint [#137] itself, as Plaintiff states that Defendant Dillinger informed Plaintiff that "security would not approve [the restrictions and accommodations] and SCF medical does not allow such restrictions and accommodations." Id. ¶ 53. Plaintiff does not state a cognizable claim for deliberate indifference of serious medical needs simply because he disagrees with policies determining that his unidentified medical restrictions and/or accommodations are not authorized in a particular facility.
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to the alleged Eighth Amendment violation in Claim Fifty-Two, and that portion of Claim Fifty-Two be dismissed with prejudice on the merits and due to the lack of a showing of personal participation by the Defendants. Brereton, 434 F.3d at 1216. Further, because Plaintiff did not assert a constitutional violation, it is recommended that Defendants in their individual capacity be granted qualified immunity as to this claim.
B. Failure to Protect
The Court construes the remaining Eighth Amendment claims, Claims Three and Thirty-Four, as asserting the failure to protect Plaintiff. Claim Three asserts that Plaintiff's classification as a sex offender or reclassification by Trujillo resulted in "a chain of events resulting in plaintiff's increased physical harms, injuries, and loss of medical restrictions and accommodations." Fourth Am. Compl. [#137], ¶ 15. Claim Thirty-Four asserts that a breach of confidentiality by Borrego-Gibbs in connection with the SOTMP contract resulted in Plaintiff's "safety and welfare" being compromised, in persecution, and "injuries where plaintiffs [sic] was threatened and personally attacked suffering physical pain with bruising remarks and scratches made upon his face, and arms from being intimidated by other inmates who observed" Borrego-Gibbs. Id. ¶ 90. The Court finds that Plaintiff's allegations fall short of an actionable failure to protect claim.
"A prisoner has a right to be reasonably protected from constant threats of violence and sexual assaults from other inmates." Riddle, 83 F.3d at 1204. As the Supreme Court stated, "[b]eing violently assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society.'" Farmer, 511 U.S. at 834 (citation omitted). However, not every injury a prisoner suffers at the hands of another inmate "translates into constitutional liability for prison officials responsible for the victim's safety." Id. Instead, "a prison official violates the Eighth Amendment only if (1) the alleged deprivation is "objectively, 'sufficiently serious,'" meaning that the inmate "is incarcerated under conditions posing a substantial risk of serious harm" and (2) "a prison official must have a 'sufficiently culpable state of mind.'" Id. (citation omitted). As to the latter requirement, a plaintiff must show that the defendants "were subjectively aware of a substantial risk to plaintiff's health or safety and acted in purposeful disregard of that risk." Martinez, 563 F.3d at 1088.
Here, even construing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff has not shown that he is incarcerated under conditions posing a substantial risk of serious harm, at least as to Claim Three. That claim asserts injuries that allegedly resulted from Plaintiff's initial classification as a sex offender or reclassification, but offers no more than conclusory assertions of physical harm. See Fourth Am. Compl. [#137], ¶¶ 15-16. Conclusory allegations without supporting factual averments" are not sufficient to show that the "deprivation alleged. . . [is] sufficiently serious." Riddle, 83 F.3d at 1205 (allegation that the plaintiff was "exposed to adverse prison setting, constantly in fear of his life by physical assaults from other inmates . . ." was conclusory and not sufficient to show the objective element). Further, the mere classification of Plaintiff as a sex offender does not create an actionable Eighth Amendment claim, without allegations that "explain how the conditions of [his] confinement 'result in [his] degeneration or . . . threaten [his] safety.'" Allen, 930 F. Supp. 2d at 1263; see also Quintana, 2010 WL 2650047, at *7 (sex offender status does not constitute cruel and unusual punishment"). It is a closer call as to Claim Thirty-Four, as the claim can be construed as alleging that Borrego-Gibbs' breach of Plaintiff's confidentiality in front of the other inmates created a substantial risk to Plaintiff's safety in that it resulted in attacks on Plaintiff by other inmates and physical injury.
Nonetheless, the Court finds as to both Claims Three and Thirty-Four that Plaintiff's allegations fail to satisfy the subjective component: that Defendants acted with the requisite deliberate indifference to Plaintiff's safety. Plaintiff states no allegations that show Trujillo or Romero (named in Claim Three) or Borrego-Gibbs (named in Claim Thirty-Four) knew or should have known of "facts from which the inference could be drawn" that the classifications in Claim Three or the alleged breach of confidentiality in Claim Thirty-Four posed a substantial risk of serious harm to Plaintiff, or that the Defendants actually drew that inference. Gray v. Sorrels, 744 F. App'x 563, 568 (10th Cir. 2018) (citing Requena v. Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018)). In other words, there are no allegations that show that these Defendants had any knowledge that their alleged actions put Plaintiff at serious risk of harm. While Plaintiff states in Claim Thirty-Four that inmates attacked him after they observed Borrego-Gibb's actions (Fourth Amended Complaint [#137], ¶ 90), he does not allege any facts from which it could be inferred that Borrego-Gibbs knew of that risk.
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] also be granted as to Claims Three and Thirty-Three to the extent they allege an Eighth Amendment violation, and that this portion of Claims Three and Thirty-Three be dismissed with prejudice for failure to state a claim. Brereton, 434 F.3d at 1216. Moreover, because Plaintiff fails to demonstrate a constitutional violation in connection with these claims, the Court recommends that Defendants Trujillo, Romero, and Borrego-Gibbs be granted qualified immunity in their individual capacities.
I. ADA/Rehabilitation Act
The only remaining ADA/Rehabilitation Act claim is Claim Fifty-Two. Plaintiff alleges that Defendants "have each individually and wantonly disregarded their duties under the rehabilitation act and its implemented regulations . . . to meet full ADA compliance" at the SCF. Fourth Am. Compl. [#137], at 35, ¶ 156. Plaintiff states that he brings the claims against "[a]ll defendants, except CDOC, SOMB." Id. ¶ 164. It is alleged that Plaintiff was "stripped of" his known medical restrictions and needs when he was transferred from one facility (LCF) to another (SCF). Id. ¶ 163. Thus, Plaintiff alleges that he has been deprived of such things as physical therapy, access to prison programs, benefits, the law library, an ADA accessible bunk, and various services, and that there are problems with the community shower, SCF building entrances and doors, unsafe grab bars, bathrooms, beds, and other issues. See id. ¶¶ 167-181. These deprivations allegedly put Plaintiff at a "risk of harm," and Plaintiff alleges that Defendants, who are sued in their individual capacities, engaged in the above discriminatory practices "with malice or wilful [sic] recklessness and with indifference to plaintiff's rights . . . ." Id. ¶¶ 185-86.
Again, Plaintiff previously dismissed the portion of Claim Fifty-Two asserted as to LCF. [#193, #195].
CDOC and SOMB are not actual Defendants in the Fourth Amended Complaint. They were named as Defendants in the Third Amended Complaint and dismissed by the Court. See [#76], [#80].
The Court first finds that Claim Fifty-Two fails as a matter of law against the individual Defendants. To prevail on a Rehabilitation Act or ADA claim, Plaintiff must allege that a public entity discriminated against him. 42 U.S.C. § 12132; Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 208 (1998) (the ADA "prohibits a 'public entity' from discriminating against a 'qualified individual with a disability'"). "[I]ndividual defendants in their individual capacities are not properly subject to suit under the Rehabilitation Act or the Disability Act." Montez v. Romer, 32 F. Supp. 2d 1235, 1241 (D. Colo. 1999). Accordingly, the Court recommends that Claim Fifty-Two be dismissed as to the individual Defendants.
Plaintiff does not address this issue in his Response [#194], asserting only that he has alleged "more valid short concise facts alleging individual defendant's [sic] participation with more specific issues of dates, etc. . . ." Id. at 2. Defendants' personal participation is not the issue, however, as this claim can only be asserted against a public entity.
To the extent that the Court has construed the claims against Defendants in their official capacity as a claim against the state in Section III.A, supra, in this case the CDOC, the Court finds that Plaintiff has failed to state a plausible ADA/Rehabilitation Act claim. A plaintiff seeking accommodations under the ADA must show that "(1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability." Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1193 (10th Cir. 2007). "A disability within the meaning of the ADA is, inter alia, 'a physical or mental impairment that substantially limits one or more of the major life activities' of an individual." Id. (citation omitted).
To demonstrate he is entitled to protection under § 504 of the Rehabilitation Act, a plaintiff must show that "(1) plaintiff is handicapped under the Act; (2) he is 'otherwise qualified' to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff." Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir. 2008). Because the required showings under the ADA and the Rehabilitation Act are substantially similar, the same analysis can be generally applied to Plaintiff's claims under each. Cohon ex rel. Bass v. N.M. Dep't of Health, 646 F.3d 717, 726 (10th Cir. 2011).
Plaintiff's claims fail because there are no specific allegations as to what his purported disability is. "To satisfy the ADA's definition of disability, a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities.'" Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (citation omitted). Plaintiff's allegations fail to identify what his recognized impairment is or show what major life activity is impaired. At most, Plaintiff asserts that he uses a wheelchair and has some undefined "mobility disabilities and medically needed restrictions." See, e.g., Fourth Am. Compl. [137], ¶ 162. These allegations are insufficient to allege a "disability" under the ADA or Rehabilitation Act. See Rivera v. Dowis, No. 08-CV-02715-CMA-CBS, 2010 WL 745018, at *15 (D. Colo. Feb. 24, 2010) (finding inmate plaintiff failed to state a claim under the ADA where, although he alleged that he used a wheelchair, he had "not alleged that he is substantially limited [in] any major life activity").
Plaintiff responds that he "gave enough identification concerning his 'medical restrictions, and known needed medical accommodations' by directing attention to the documented CDOC Medical Files," Defendants "were clearly apprised of plaintiff's allegations," and the specific details can be reserved for discovery or trial proceedings. Resp. [#194], at 15. As to the CDOC Medical Files, this is referenced in the Fourth Amended Complaint [#137] at page 18, paragraph 57. Id. The allegations in that paragraph do not, however, state what Plaintiff's impairment is or what major life activities are limited, or give any indication of what is documented in the CDOC medical files. Plaintiff also asserts on page seven of his Response [#194] that while he "cannot fully address" this claim, the Court should not dismiss it based on Affidavits attached to a Motion to Enter Sterling Correctional Facility [#70]. The attached Affidavits are submitted by other inmates, however, and thus do not address the defects in Plaintiff's claim. Accordingly, they are not relevant to the Motion to Dismiss [#194] as to this claim, and will not be considered. See Fed. R. Civ. P. 12(d). Plaintiff has thus not plausibly pled a violation of the ADA or Rehabilitation Act.
Accordingly, it is recommended that the Motion to Dismiss [#174] be granted as to the ADA claim in Claim Fifty-Two, and the portion of this claim asserting an ADA claim be dismissed with prejudice for failure to state a claim. Brereton, 434 F.3d at 1216.
J. Claims Not Addressed Above
1. Claim Forty-One (Plaintiff's Kosher Meal Contract)
In Claim Forty-One, Plaintiff alleges that Defendants Nygaard and Hansen violated his First Amendment right to religious freedom and/or his equal protection rights because he was required to enter a written agreement in order to receive kosher diet meals for his religious beliefs. Fourth Am. Compl. [#137], ¶ 110. Plaintiff alleges that the warden punishes inmates who enter the contract "for not following every single rule of their religion." Id. ¶ 111. While it is somewhat unclear from the allegations, the Court construes Plaintiff to be alleging that he can be reported by staff, and his kosher meal contract can be terminated, if he consumes non-Kosher food. This non-Kosher food is often served at Chaplin services that involve fund raising sales that Plaintiff is exposed to. Id. ¶¶ 111-18. Plaintiff asserts that he should be able to participate in such programs "without penalty," and that "Christians are not policed to their diet practices." Id. ¶¶ 112-121. Finally, Plaintiff avers that fund raising is used to provide weekly Christian based movies, and asserts that these funds should also be used for a weekly Jewish-based movie. ¶¶ 119, 122. The Motion to Dismiss [#174] argues that Plaintiff fails to allege a plausible violation of his constitutional rights in connection with this claim. Id. at 21-23.
The Court first addresses whether Plaintiff has stated a violation of his First Amendment right to free exercise of religion. An inmate attempting to establish a free exercise claim "must first show that a prison regulation 'substantially burdened ... sincerely-held religious beliefs.'" Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citation omitted). To determine whether the plaintiff "has made an initial showing of a substantial burden on religious exercise, courts use the same test under the First Amendment as is used under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Orwig v. Williams, No. 16-cv-00781-PAB-SAC, 2019 WL 4751775, at *8 (D. Colo. Sep. 30, 2019) (citing Strope v. Williams, 381 F. App'x 878, 881 (10th Cir. 2010) (further citations omitted)). The Tenth Circuit has "identified three broad ways government action may impose a substantial burden on religious exercise:
(1) requir[ing] participation in an activity prohibited by a sincerely held religious belief, or (2) prevent[ing] participation in conduct motivated by a sincerely held religious belief, or (3) plac[ing] substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, . . . ."Strope, 381 F. App'x at 881.
Plaintiff fails to allege a plausible claim that the contract he is required to enter into for his religious diet and the restrictions on the contract if Plaintiff eats non-Kosher food violate his free exercise rights. This Court has held that "a prison policy that terminates an inmate's participation in a religious diet program when he violates the diet requirements does not deny his right to religious freedom." Gibson v. Zavaras, No. 09-CV-02328-WYD-KLM, 2010 WL 2543584, at *4 (D. Colo. Jan. 22, 2010) (citing cases), report and recommendation adopted, No. 09-CV-02328WYDKLM, 2010 WL 2543583 (D. Colo. June 22, 2010). Moreover, Plaintiff's allegations regarding this contract do not show that he is required to participate in activity prohibited by his faith or prohibited from participating in conduct motivated by a religious belief, nor does he allege substantial pressure in regard to either.
The same is true as to Plaintiff's allegations regarding Christian fundraising and movies supported by such fundraising. Plaintiff has not alleged that the fundraising and movies have significantly inhibited Plaintiff's expression of his Jewish faith, meaningfully curtailed his ability to express that faith, or denied him the reasonable opportunity to engage in fundamental Jewish activities. Further, Plaintiff does not allege that he was required to participate in the fundraising and/or Christian movie nights. Nor does Plaintiff state a claim for violation of the Establishment Clause by his allegations that Defendants allowed fundraising for Christian causes to occur in the facility. Plaintiff has not alleged, for example, that the principle or primary effect of the fundraising or the showing of Christian movies as a result of the fundraising is to endorse religion or a particular form of religion, or that this "fosters an excessive government entanglement with religion." Green v. Haskell Cty. Bd. of Commissioners, 568 F.3d 784, 797 (10th Cir. 2009); see also Bauchman for Bauchman v. W. High Sch., 132 F.3d 542, 555 (10th Cir. 1997) ("[N]ot every governmental activity that confers a remote, incidental or indirect benefit upon religion is constitutionally invalid.").
Finally, Plaintiff's allegations in Claim Forty-One do not state a plausible equal protection claim. As discussed in Section III.F, supra, to state an equal protection claim, Plaintiff "must allege that he was 'similarly situated' to other inmates who were treated differently, and that the difference in treatment was not 'reasonably related to a legitimate penological purpose.'" Matthews, 744 F. Supp. 2d at 1174 (quoting Fogle, 435 F.3d at 1261). Alternatively, as to the second element, Plaintiff must show that the acts forming the basis of the claim "were motivated by a discriminatory purpose." Derrick v. Ward, 91 F. App'x 57, 62 (10th Cir. 2004). Here, Plaintiff offers no allegations that he was treated different from others who are similarly situated to him. The fact that Christians were not required to enter into a contract does not meet this requirement as Plaintiff does not show that Christians are similarly situated to Jewish inmates in terms of their diet and dietary restrictions. Moreover, Plaintiff offers no allegations that Jewish inmates were denied the same opportunities for fundraising or hosting movies.
Plaintiff's Response [#194] as to this issue is largely unintelligible. Id. at 8.
Plaintiff also has not shown or alleged that any difference in treatment was not reasonably related to legitimate penological interests. Indeed, as noted by this Court in Gibson, "prison officials may assess the sincerity of an inmate's belief in order to administer prison programs and policies." 2010 WL 2543584, at *4 (citing Jackson v. Mann, 196 F.3d 316, 320 (2d Cir.1999) (prison officials may inquire into the sincerity of inmate requesting kosher meals)). Finally, Plaintiff pleads no allegations that Defendants' actions were motivated to discriminate against Plaintiff due to his Jewish religion. See Derrick, 91 F. App'x at 62.
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to Claim Forty-One, and that this claim be dismissed with prejudice. Brereton, 434 F.3d at 1216. Further, as Plaintiff has stated no constitutional violation in connection with this claim, it is recommended that the Defendants be granted qualified immunity in their individual capacity.
2. Claim Fifty (Incentive Donations Procedures)
Claim Fifty alleges that Defendants Tappe, Lind, Tammie, and Raemisch violated Plaintiff's constitutional rights through a change in the incentive program in August 2015 that led to certain properties and property donations being taken and "redistributed" between November 2015 to January 2016. Fourth Am. Compl. [#137] at ¶¶ 142-46. Defendant's Motion [#174] asserts, and the Court agrees, that this claim fails on the following grounds: (1) the claim is barred by the two-year statute of limitations; (2) the allegations do not rise to the level of a constitutional violation; and (3) Plaintiff fails to sufficiently allege personal participation. Id. at 27-28.
First, the statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued. Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir. 2010). The allegations in this claim date from 2015 until January 2016. Fourth Am. Compl. [#137], ¶¶ 142-43. This claim is time-barred because Plaintiff raised the claim for the first time in his Second Amended Complaint filed on March 7, 2018, which is more than two years after the events underlying the claim.
While Plaintiff argues that this claim should be equitably tolled due to such things as Defendants' "disruptive actions" and "grievance filing requirements" (Response [#194], 7, 18-19), Plaintiff has not stated a basis for equitable tolling. "[U]nder Colorado law, the statute of limitations is not automatically tolled whenever an individual pursues administrative remedies." Braxton, 614 F.3d at 1160. Instead, "equitable tolling is limited 'to situations in which either the defendant has wrongfully impeded the plaintiff's ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts.'" Id. (quoting Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996)). The Court finds that Plaintiff has not shown that Defendants wrongfully impeded his ability to bring the claim, nor has he pled any extraordinary circumstances that prevented him from filing his claim.
The Court also finds that this claim should be dismissed on the merits. Judge Babcock previously dismissed the version of this claim that was asserted as Claim Thirteen in the Third Amended Prisoner Complaint [#76]. Order [#80], at 12. Judge Babcock found that the claim, which alleged that "'certain undefined 'properties . . . and donations were redistributed' by individuals" not then named as defendants (Lt. Tappee and Warden Rae Timmie), did not meet the requirements of Rule 8. Id. This is because the claim did not provide a short and plain statement of the claim showing that Plaintiff is entitled to relief. Id. While Plaintiff has supplemented his allegations and now sues Lt. Tappe and Former Warden Timmie along with Former Warden Lind and Executive Director Rick Raemish, the claim is no more cognizable now then the prior version that was dismissed.
Given the most liberal reading, Claim Fifty appears to challenge a new policy that "restricted Plaintiff's properties" (including his Xbox system, games, and DVD machines and movies) and donated "inmate and inmate family funds for these properties." Fourth Am. Compl. [#137], ¶ 142. Plaintiff's properties and the donations were allegedly redistributed in violation of apparent agreements. Id. ¶ 143. Absent a statutory or constitutional violation, however, "courts generally do not intervene in matters of prison administration and defer to the DOC in the management of penal institutions." Griffin v. Smith, No. 13-CV-03015-BNB, 2014 WL 11878139, at *2 (D. Colo. Mar. 19, 2014) (citing Sandin v. Connor, 515 U.S. 472, 482 (1995)). Here, Plaintiff has not alleged a constitutional violation, but violations of the CDOC's administrative regulations ("ARs") and Colorado statutes. See Fourth Am. Compl. [#137], ¶¶ 142-47. Such violations are not cognizable in a § 1983 action. See Jenkins v. Currier, 514 F.3d 1030, 1033 (10th Cir. 2008) ("'Plaintiffs alleging a violation of ¶ 1983 must demonstrate that they have been deprived of a right secured by the Constitution and the laws of the United States. . . .'"); Portier v. Defusco, No. 08-cv-00235-WYD-CBS, 2008 WL 5533987, at *6 (D. Colo. Nov. 26, 2008) ("the 'failure to adhere to administrative regulations does not equate to a constitutional violation'") (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993)).
Finally, Defendants' alleged personal participation is limited in the Fourth Amended Complaint [#137] to the creation of or "discretionary authority" over incentive program policies. Id. at ¶¶ 142, 144. "[S]upervisory liability exists even without personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Dodge v. Shoemaker, 695 F. Supp. 2d 1127, 1143 (D. Colo. 2010) (citation omitted). Here, as the allegations do not plausibly suggest a constitutionally deficient policy, Plaintiff's conclusory assertions of supervisory participation by Defendants are insufficient to meet the requirement of personal participation.
Based on the foregoing, it is recommended that the Motion to Dismiss [#174] be granted as to Claim Fifty, and that this claim be dismissed with prejudice for failure to state a claim and to plead personal participation. Brereton, 434 F.3d at 1216. As Plaintiff did not plead a constitutional violation, it is further recommended that Defendants be granted qualified immunity in their individual capacities.
K. Any Remaining Claims
To the extent the Court has not addressed all of Plaintiff's intended claims, the Court finds that any remaining claims must be dismissed because Plaintiff has not plausibly shown a constitutional violation. As noted previously, "[e]ven pro se litigants must do more than make mere conclusory statements regarding constitutional claims." Brown, 63 F.3d at 972. Here, Plaintiff makes several arguments in his Response [#194] as to other potential claims, but they do not state a plausible claim for relief.
For example, Plaintiff argues "that statements made by plaintiff to treatment therapists as public officials on matters of public concern" must be afforded First Amendment protection. Resp. [#194], at 10-12. The test Plaintiff is referencing is inapposite as it applies to claims by government employees who are alleging adverse action because of an employee's exercise of his or her free speech. See Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 2001). Moreover, while Plaintiff refers to viewpoint discrimination, he has not shown that Defendants "acted with a viewpoint-discriminatory purpose." Pahls v. Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013).
Plaintiff further avers that his claims pertain to the use of "parole information," which he alleges "breach contract terms and confidentiality, [a]ffect plaintiffs [sic] parole appellate rights," amount to "controlling plaintiff versus monitoring," and violate his constitutional rights. Resp. [#194], at 22. Plaintiff also asserts that he was required to sign his SOTMP treatment claim under duress, and that "the contract is punitive and/or creates a disability." Id. at 8, 23; see also 26 (alleging acceptance, meeting of minds, and breach of contract); Surreply [#203]. To the extent these arguments allege a breach of contract, the Court previously found in Section III.A, supra, that Plaintiff did not state a plausible contract claim. To the extent that these arguments impact due process claims regarding the SOTMP or SOMB, they were addressed in Section III.D, supra. To the extent Plaintiff is attempting to state some other constitutional claim in connection with these arguments that has not already been addressed, see, e.g., Response [#194], at 6 (noting violations of the Supremacy Clause, the Fourth, Ninth, and Tenth Amendments, and separation of powers in the U.S. Constitution and Colorado Constitution), the Court finds no merit to this. Plaintiff does not allege how such constitutional rights were violated or the factual particulars of such a claim.
Plaintiff also makes arguments based on state law and his criminal Plea Agreement. See Resp. [#194] at 3 (alleging the violation of Defendant's Plea Agreement); id. at 6 (alleging 8-10 (alleging issues with and violations of specified Colorado statutes); id. at 10 (alleging that the "SOMB standards should not be read in a way that negates the requirements of C.R.S. § 13-90-107, or plaintiffs [sic] criminal plea addendum"); id. at 25 (alleging the CDOC therapists owe a legal duty to Plaintiff). These are not proper challenges in a § 1983 claim. See Jenkins, 514 F.3d at 1033 ("'Plaintiffs alleging a violation of ¶ 1983 must demonstrate that they have been deprived of a right secured by the Constitution and the laws of the United States. . . .'") (citation omitted).
Similarly, Plaintiff argues that to the extent any portion of the SOTMP treatment contract is ambiguous or preempted by federal law, it should be severed. Resp. [#194], 12, 23-24. Plaintiff has not shown how the treatment contract is ambiguous or why it is preempted by federal law. Moreover, these allegations again would not provide a basis to assert a § 1983 claim.
Finally, Plaintiff makes other conclusory arguments regarding constitutional claims that are not properly supported. See Resp. [#194], at 13 ("enforcement of the SOTMP contract provisions will inevitably lead to Fourth Amendment violations" and constitute "a substantial theat of irreparable injury") (emphasis in original); id. at 23-24 (the SOTMP contract terms "as utilized by custodial therapists are unconstitutional"); id. at 24 ("the CDOC SOTMP entity public has been given, commonly exercises, and has exercised against the plaintiff the power to inflict enhanced punishments beyond those imposed through the courts, and do so [sic] arbitrarily and with no notice, no procedural protections and no limitations or parameters on their actions other than the potential for prosecution if their actions would be a crime"); id. at 25 (Plaintiff "is suffering penalties and injuries, losses, by abuse infringing his constitutional rights"). These assertions, and any other arguments made by Plaintiff, fall far short of stating a plausible constitutional claim under § 1983.
L. Whether Plaintiff Should Be Granted Leave to Amend
In his Surreply [#203], Plaintiff requests that he be allowed to correct any deficiencies by filing another amended complaint. Id. at 8. The Court recommends that this request be denied.
First, the request was not made in a formal motion, but in Plaintiff's Surreply [#203] which Defendants did not have the opportunity to respond to. The Tenth Circuit holds that "a court need not grant leave to amend when a party fails to file a formal motion." Calderon v. Kan. Dep't of Soc. And Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). In Calderon, the Tenth Circuit noted that it had previously found "a bare request" to amend in a response to a motion to dismiss to be insufficient. Id. (citing Glenn v. First Nat'l Bank, 868 F.2d 368, 370 (10th Cir. 1989)). Here, as in Glenn, Plaintiff "'state[s] no grounds let alone particular grounds for the request,'" and did not make "'an application for an order contemplated under the rules.'" Calderon, 181 F.3d at 1186 (quoting Glenn, 868 F.2d at 370). Moreover, Plaintiff gave no notice to Defendants. Id.
Second, as to the merits of the request, Plaintiff has had three opportunities to amend his complaint ([#24, #61,#137]), after being advised by the Court multiple times as to its deficiencies. See [#25, #38, #58, #80]. Plaintiff continues to reassert claims that were previously dismissed or found to be deficient, and the Court believes that any further amendment would be futile. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999) ("Although Fed. R. Civ. P. 15(a) provides that leave to amend shall be given freely, the district court may deny leave to amend where amendment would be futile.").
As noted by District Judge Robert Blackburn in approving a recommendation to deny a motion to amend in another case in this Court, "Plaintiff may well be . . . unschooled in the law, but he is no doubt aware of the facts that underlie his lawsuit and the basis for his claims." Faircloth v. Timme, No. 12-cv-03317-REB-KLM, 2014 WL 1225020, at *1 (D. Colo. Mar. 25, 2014). Judge Blackburn continued:
The court presumes that plaintiff has set forth in his proposed amended complaint all those facts of which he is aware that he believes give rise to a legal cause of action against defendants. That such facts, in fact, are insufficient to make out viable claims is attributable not to plaintiff's lack of legal training, but to the lack of underlying merit of his claims.Id. The Court believes the same analysis is applicable here.
Based on the foregoing, it is recommended that Plaintiff's request in his Surreply [#203] for leave to amend his Fourth Amended Complaint [#137] be denied.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion to Dismiss [#174] and the Lobanov-Rostovsky Motion to Dismiss [#191] be GRANTED IN FULL, and that Plaintiff's Complaint [#137] be DISMISSED. More specifically,
IT IS HEREBY RECOMMENDED that the Motions [#174, #191] be GRANTED to the extent that Plaintiff's claims seek monetary relief against the individual Defendants in their official capacities, and that such claims be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
IT IS FURTHER RECOMMENDED that the Lobanov-Rostovsky Motion [#191] be GRANTED as to the declaratory and injunctive claims against Defendant Lobanov-Rostovsky in his official capacity, and that these claims be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
IT IS FURTHER RECOMMENDED that Defendant Lobanov-Rostovsky be DISMISSED from this case as he is not sued in his individual capacity;
IT IS FURTHER RECOMMENDED that to the extent Plaintiff has reasserted claims such as the facial validity of the SOTMP and the other claims referenced in Section III.B, supra, that Plaintiff failed to correct the deficiencies as to, those claims be DISMISSED WITH PREJUDICE for failure to state a claim.
IT IS FURTHER RECOMMENDED that to the extent Plaintiff's claims seek injunctive or declaratory relief relating to conditions of confinement at facilities where Plaintiff was previously incarcerated (other than SCF), these claims be DISMISSED WITH PREJUDICE as moot.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to the due process claims involving the SOTMP, and that this portion of Claims Seven, Eleven, Thirty-One, Thirty-Two, and Thirty-Three be DISMISSED WITH PREJUDICE for failure to state a claim.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to any First Amendment free speech violations in connection with SOTMP treatment, and that these claims be DISMISSED WITH PREJUDICE for failure to state a claim.
IT IS FURTHER RECOMMENDED that the Lobanov-Rostovsky Motion [#191] be GRANTED as to Claims Thirty-Five and Thirty-Six, and that these claims be DISMISSED WITH PREJUDICE for failure to state a claim.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to Plaintiff's Equal Protection claim in Claim Three, and that this portion of Claim Three be DISMISSED WITH PREJUDICE for failure to state a claim or show personal participation by the Defendants.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to the First Amendment retaliation claims asserted in Claims Seven and Eleven, and that this portion of Claims Seven and Eleven be DISMISSED WITH PREJUDICE based on failure to state a claim.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to the Eighth Amendment claims asserted in Claims Three, Seven, Eleven, Thirty-One, Thirty-Two, Thirty-Three, Thirty-Four, and Fifty-Two, and that this portion of those claims be DISMISSED WITH PREJUDICE based on failure to state a claim.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to the ADA/Rehabilitation Act Claims asserted in Claim Fifty-Two, and that this portion of Claim Fifty-Two be DISMISSED WITH PREJUDICE based on failure to state a claim.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to Claim Forty-One (related to Plaintiff's Kosher Meal Contract), and that this claim be DISMISSED WITH PREJUDICE based on failure to state a claim.
IT IS FURTHER RECOMMENDED that the Motion to Dismiss [#174] be GRANTED as to Claim Fifty (related to Incentive Donations Procedures), and that this claim be DISMISSED WITH PREJUDICE based on the failure to state a claim.
IT IS FURTHER RECOMMENDED that to the extent Plaintiff is asserting any other alleged constitutional violations or claims, they be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that as Plaintiff has not stated any constitutional violations, that Defendants be GRANTED qualified immunity on the constitutional claims to the extent they are sued in their individual capacities.
IT IS FURTHER RECOMMENDED that Plaintiff's request for leave to amend the complaint be DENIED.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 27, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge