Opinion
Civil Case No. 08-cv-02546-PAB-BNB.
March 10, 2010
ORDER
This matter comes before the Court on the Recommendation of United States Magistrate Judge ("the Recommendation") [Docket No. 54], which recommends that the Court grant defendant's Motion to Dismiss [Docket No. 38] and deny plaintiff's Motion to Submit Supplemental Pleading and Additional Request for Relief in the Form of a Preliminary Injunction [Docket No. 47]. On November 20, 2009, plaintiff filed timely objections [Docket No. 55] to the Recommendation.
On January 11, 2010, plaintiff filed an "Addendum" to his objections without leave of Court. [Docket No. 57].
The Court has conducted a de novo review of the record and has construed the plaintiff's pleadings liberally in light of his status as a pro se plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Plaintiff contends that failure to provide some form of process prior to having his sex-offender sub-classification code changed violated his due process rights under the Fourteenth Amendment, citing Beebe v. Heil, 333 F. Supp. 2d 1011, 1016-17 (D. Colo. 2004). His argument is unavailing.
"The Due Process Clause guarantees due process only when a person is to be deprived of life, liberty, or property." Chambers v. Colo. Dep't of Corr., 205 F.3d 1237, 1242 (10th Cir. 2000). The court in Beebe concluded that an inmate sentenced to an indefinite term in prison pursuant to section 18-1.3-1004 of the Colorado Sex Offender Lifetime Supervision Act ("CSOLSA") who would become ineligible for release from prison absent participation in a Sex Offender Treatment and Monitoring Program ("SOTP") had a cognizable liberty interest in such treatment. See Beebe, 333 F. Supp. 2d at 1017. Pursuant to the CSOLSA, "a sex offender is required to undergo treatment and . . . the Colorado Department of Corrections lacks discretion to withhold treatment." Id. Under those circumstances, withholding treatment worked a "`major change in the condition of [Plaintiff's] confinement,' since his status would change from `eligible to be considered for parole' to ineligible to be considered for parole.'" Id. (citation omitted). Plaintiff is not serving an indefinite sentence; rather, he has been sentenced to fourteen years in prison. See Att. 12 to Am. Compl. [Docket No. 14]. Consequently, his release from prison is not contingent upon treatment in the SOTP, as was the case in Beebe.
As carefully explained in the Recommendation, an inmate does not have a due process right in his sex-offender sub-classification. As a result, the change in his sub-classification from R to D fails to support a due process violation.
Plaintiff also seeks appointment of counsel [Docket No. 26]. Plaintiff objects [Docket Nos. 30, 32] to the magistrate judge's denial of that request [Docket No. 29]. The Court finds no error with the magistrate judge's application of the relevant factors to plaintiff's request. See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 54] is ACCEPTED and the Court adopts the reasoning therein. It is further
ORDERED that the objections [Docket No. 55] of plaintiff Gregory Stewart Hubler to the Recommendation of United States Magistrate Judge are OVERRULED. It is further
ORDERED that defendant's motion to dismiss [Docket No. 38] is GRANTED. It is further
ORDERED that plaintiff's Motion to Submit Supplemental Pleading and Additional Request for Relief in the Form of a Preliminary Injunction [Docket No. 47] is DENIED. It is further
ORDERED that plaintiff's objection to the magistrate judge's denial of appointment of counsel [Docket No. 30] is OVERRULED. It is further
ORDERED that plaintiff's motion for summary judgment [Docket No. 59] is DENIED. Further, it is ORDERED that judgment shall enter in favor of defendant and against plaintiff.