Lerner et al. v. Stancil et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-00888-NYW-NRN
GINO LERNER, and
BRIAN AIGNER,
Plaintiffs,
v.
MOSES ANDRE STANCIL, in his official capacity,
MICHELLE BRODEUR, in her official capacity,
KIMBERLY KLINE, in her official capacity, and
AMANDA RETTING, in her official capacity,1
Defendants.
MINUTE ORDER
Entered by Judge Nina Y. Wang
This matter is before the Court on Defendants’ Motion to Dismiss Amended Complaint
(ECF No. 8) Under Fed. R. Civ. P. 12(b)(1) for Lack of Subject-Matter Jurisdiction (“Second
Motion to Dismiss”), [Doc. 60, filed August 7, 2023], filed by Defendants Moses Andre Stancil,
Michelle Brodeur, Kimberly Kline, and Amanda Retting (together, “Defendants”); and Plaintiff
Lerner’s Motion for Leave to File Supplemental Complaint (“Plaintiff Lerner’s Motion for
Leave”), [Doc. 68, filed August 10, 2023], filed by Plaintiff Gino Lerner (“Mr. Lerner” 	or
“Plaintiff Lerner”).
Procedural History. 	Mr. Lerner and Plaintiff Brian Aigner (“Mr. Aigner” or “Plaintiff
Aigner” and, with Mr. Lerner, “Plaintiffs”) are in the custody of the Colorado Department of
Corrections (“CDOC”). 	See [Doc. 8 at 2–3]. 	Plaintiffs are serving indeterminate sentences
pursuant to the Colorado Sex Offender Lifetime Supervision Act of 1998 (“SOLSA”). See [id. at
6]. SOLSA requires Plaintiffs to undergo sex-offender treatment as part of their sentences; SOLSA
sentences consist of indefinite custody until the parole board concludes, among other conditions,
1 According to Defendants, Defendants Joy Hart and Christina Ortiz-Marquez have been
substituted with Defendants Kimberly Kline and Amanda Retting. See [Doc. 53 at 1 n.1]. Pursuant
to Fed. R. Civ. P. 25(d), “[a]n action does not abate when a public officer who is a party in an
official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.” 	Here, Defendants Hart and Ortiz-
Marquez were sued in their official capacities. 	See [Doc. 8 at 1, 4–5]. 	Defendants Kline and
Retting are thus automatically substituted as parties. The Court DIRECTS the Clerk of the Court
to AMEND the caption and docket accordingly.
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that Plaintiffs have “successfully progressed in treatment.” 	[Id. (quoting Colo. Rev. Stat. § 18-
1.3-1006(1)(a))]. 	Plaintiffs filed this action on April 13, 2022, claiming that CDOC, by and
through Defendants, has prevented them from participating in or receiving sex-offender treatment
through the Sex Offender Treatment and Monitoring Program (“SOTMP”). [Doc. 1]. Plaintiffs
filed the operative pleading (“Amended Complaint”), which includes claims for violations of
procedural and substantive due process, two weeks later. [Doc. 8].
Defendants moved to dismiss the Amended Complaint, arguing that Plaintiffs have no
constitutionally protected liberty interest in accessing sex-offender treatment. [Doc. 21]. Plaintiffs
opposed. 	[Doc. 29]. 	The Honorable N. Reid Neureiter recommended denying Defendants’
motion. [Doc. 35]. On May 23, 2023, the Court overruled Defendants’ objections and adopted
Judge Neureiter’s Recommendation, concluding that “Colorado law vests SOLSA inmates with a
liberty interest in the opportunity to access sex-offender treatment,” and that “interest triggers due
process protections.” [Doc. 43 at 11].
On June 27, 2023, Defendants filed their Motion for Leave to File a Second Motion to
Dismiss Plaintiffs’ Amended Complaint (ECF No. 8) Pursuant to Fed. R. Civ. P. 12(b)
(“Defendants’ Motion for Leave”). 	[Doc. 53]. 	In it, Defendants took the position that both
Plaintiffs had, in fact, been enrolled in SOTMP after the inception of this lawsuit, which mooted
the Amended Complaint and justified another motion to dismiss to argue mootness. See [id. at 3–
4]. The Court ordered Plaintiffs to respond to Defendants’ Motion for Leave by July 28, 2023.
[Doc. 55]. Plaintiff Aigner responded by agreeing, on the merits, that his claims were moot and
should be dismissed. See [Doc. 58 at 3]. Plaintiff Lerner did not respond to Defendants’ Motion
for Leave. The Court then granted Defendants’ request for leave to file a second motion to dismiss,
docketed the Second Motion to Dismiss, and construed Mr. Aigner’s filing as his response on the
merits. [Doc. 59]; see also [Doc. 60]. Mr. Lerner sought and obtained additional time to respond
to the Second Motion to Dismiss, [Doc. 64], but the Court did not receive any such response.
Instead, Mr. Lerner filed his Motion for Leave, in which he represents that, while he had
been enrolled in SOTMP as Defendants suggested, he has not been properly reinstated into the
program after being terminated for a violation that has since been expunged. See [Doc. 68 at 2–
4]. 	Defendants responded that Plaintiff Lerner’s Motion for Leave was procedurally improper
because it did not include the proposed revised pleading, but “[s]hould Lerner file a Rule 15 motion
and proposed amended or supplemental complaint consistent with the allegations described in the
instant Motion and in compliance with the Federal Rules of Civil Procedure and the Local Rules,
Defendants anticipate that they likely will not oppose any such motion.” [Doc. 72 at 3]. Along
with his reply brief, [Doc. 74], Plaintiff Lerner attached a proposed pleading (“Supplemental
Prisoner Complaint”), [Doc. 73], which tracks the events described in Plaintiff Lerner’s Motion
for Leave and includes claims for violations of procedural and substantive due process rights by
Defendant Amanda Retting.
Second Motion to Dismiss. Federal courts are ones of limited jurisdiction; “[t]hey possess
only that power authorized by Constitution and statute . . . which is not to be expanded by judicial
decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
Federal Rule of Civil Procedure 12(b)(1) provides that a complaint may be dismissed for “lack of
subject-matter jurisdiction.” 	Fed. R. Civ. P. 12(b)(1). 	“Dismissal under Rule 12(b)(1) is not a
judgment on the merits of the plaintiff’s claim. Instead, it is a determination that the court lacks
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authority to adjudicate the matter.” Creek Red Nation, LLC v. Jeffco Midget Football Ass’n, Inc.,
175 F. Supp. 3d 1290, 1293 (D. Colo. 2016) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994)). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at
any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Caballero
v. Fuerzas Armadas Revolucionarias de Colombia, 945 F.3d 1270, 1273 (10th Cir. 2019)
(quotation omitted). As relevant here, “a case becomes moot when a plaintiff no longer suffers
actual injury that can be redressed by a favorable judicial decision.” Ind v. Colo. Dep’t of Corrs.,
801 F.3d 1209, 1213 (10th Cir. 2015) (quotation omitted)). 	“The crucial question is whether
granting a present determination of the issues offered . . . will have some effect in the real world.”
Smith v. Beccerra, 44 F.4th 1238, 1247 (10th Cir. 2022) (quoting Citizens for Responsible Gov’t
State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)).
Here, Defendants argue that because Plaintiffs have been enrolled in SOTMP, thus
receiving the initial placement sought by the Amended Complaint, their claims for relief are moot.
See generally [Doc. 60]; see also [Doc. 8 at 17–18 (seeking declaratory and injunctive relief with
respect to Plaintiffs’ initial enrollment in SOTMP)]. 	Mr. Aigner agrees that the Amended
Complaint is now moot, at least as to him, because he has received the opportunity to participate
in sex-offender treatment. 	See [Doc. 58 at 3]. 	Although Mr. Lerner has not responded to the
Second Motion to Dismiss directly, his other filings recognize that he likewise enrolled in SOTMP
in early 2023. See, e.g., [Doc. 68 at 2 (“On February 9, 2023 Plaintiff Lerner was progressed to
the top of the Global Referral List and placed in the SOTMP.”)].
The Court agrees with Defendants and Mr. Aigner that the Amended Complaint that seeks
enrollment in SOTMP has been mooted by Plaintiffs’ enrollment in that program. 	See Kibel v.
Williams, No. 19-cv-00754-PAB-NYW, 2019 WL 8359165, at *2 (D. Colo. Dec. 13, 2019)
(finding claims for injunctive and declaratory relief related to enrollment in SOTMP to be moot
once inmate was enrolled in SOTMP), report and recommendation adopted, 2020 WL 563295 (D.
Colo. Feb. 5, 2020); see also Conkleton v. Zavaras, 527 F. App’x 750, 753–54 (10th Cir. 2013).
As Defendants explain, “[a]ny determination that the Court could make regarding the substantive
claims would have no real-world effect,” as “the Court would be ordering . . . Plaintiffs to be
enrolled in a treatment program they were already granted the opportunity to participate in.” [Doc.
60 at 6]. The allegations in Plaintiff Lerner’s Motion for Leave do not suggest otherwise, as they
relate to intervening events that postdate Mr. Lerner’s initial entry into SOTMP and involve a
different alleged deprivation. See generally [Doc. 68]. Plaintiffs—as Mr. Aigner recognizes and
as Mr. Lerner has not denied—have now obtained the relief sought in their Amended Complaint,
[Doc. 8], and continued prosecution of their claims would have no real-world effect. The Court
finds that dismissal of the Amended Complaint is appropriate under Rule 12(b)(1). The Second
Motion to Dismiss is GRANTED.
Plaintiff Lerner’s Motion for Leave. At this stage of the litigation, “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave,” and “[t]he court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Although Defendants
have opposed Plaintiff Lerner’s Motion for Leave on procedural grounds, they specifically state
that they “likely [would] not oppose” a motion that attaches a proposed pleading consistent with
the allegations in Plaintiff Lerner’s Motion for Leave. 	[Doc. 72 at 3]. 	The primary procedural
problem identified by Defendants is that Plaintiff Lerner “did not attach a copy of the proposed
supplemental complaint” to his motion, preventing Defendants from “ascertain[ing] the full
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scope.” [Id. at 2]. Plaintiff Lerner subsequently filed his proposed revised pleading. See [Doc.
73].
Considering Rule 15’s mandate to “freely give leave,” Plaintiff Lerner’s pro se status,
Plaintiff Lerner’s correction of the procedural deficiency pointed out by Defendants, Defendants’
implied non-opposition to the Supplemental Prisoner Complaint, and the fact that the events
described in the Supplemental Prisoner Complaint occurred after this action commenced and could
not have been included in a prior pleading, the Court finds that amendment is in the interest of
justice. Plaintiff Lerner’s Motion for Leave is accordingly GRANTED.
The only remaining Parties in this action are Plaintiff Lerner and Defendant Amanda
Retting. The only remaining claims are those in the Supplemental Prisoner Complaint. See [Doc.
73].
Accordingly, IT IS ORDERED that:
(1) 	Defendants’ Motion to Dismiss Amended Complaint (ECF No. 8) Under Fed. R.
Civ. P. 12(b)(1) for Lack of Subject-Matter Jurisdiction [Doc. 60] is GRANTED;
(2) 	The Amended Complaint [Doc. 8] is DISMISSED without prejudice;
(3) 	Plaintiff Lerner’s Motion for Leave to File Supplemental Complaint [Doc. 68] is
GRANTED;
(4) 	Defendant Amanda Retting SHALL RESPOND to the Supplemental Prisoner
Complaint [Doc. 73] on or before November 9, 2023; and
(5) 	The Clerk of Court is DIRECTED to mail a copy of this Order to:
Gino Lerner, #119107
Bent County Correctional Facility
11560 Road FF75
Las Animas, CO 81054
and
Brian Aigner, #186942
Fremont Correctional Facility
P.O. Box 999
Canon City, CO 81215
DATED: October 19, 2023
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