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.
DEAN WILLIAMS, in his official capacity,
MICHELLE BRODEUR, in her official capacity,
JOY HART, in her official capacity, and
CHRISTINA ORTIZ-MARQUEZ, in her official capacity
Defendants.
REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT
PURSUANT TO RULE 12(b)(6) (Dkt. #21)
N. Reid Neureiter
United States Magistrate Judge
This matter is before the Court pursuant to Judge Nina Y. Wang’s Order (Dkt.
#27) referring Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to
12(b)(6) (the “Motion to Dismiss”). (Dkt. #21.) Plaintiffs filed a response to the Motion to
Dismiss on September 8, 2022 (Dkt. #29), and Defendants filed a reply on September
29, 2022. (Dkt. #30.) The Court heard argument from the parties on October 25, 2022.
(Dkt. #33.)
The Court has taken judicial notice of the docket and considered the applicable
Federal Rules of Civil Procedure and case law. Now, being fully informed and for the
reasons discussed below, the Court RECOMMENDS that the Motion to Dismiss
(Dkt. #21) be DENIED.
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BACKGROUND 1
Plaintiffs are inmates in the custody of the Colorado Department of Corrections
(“CDOC”) serving indeterminate sentences under the Colorado Sex Offender Lifetime
Supervision Act of 1998 (the “1998 Act”), Colo. Rev. Stat. §§ 18-1.3-1001–1012. (Dkt.
#8 at 6.) At the time of filing,2 both Plaintiffs were incarcerated at the Fremont
Correctional Facility (“FCF”). (Id.)
Plaintiffs allege that the CDOC, through Defendants, have denied them the
opportunity to participate in the Sex Offender Treatment and Monitoring Program
(“SOMTP”) which, under the 1998 Act, is a prerequisite for release. Plaintiffs complain
that the CDOC “only offers sex offender treatment at a limited number of facilities,
refuses to transfer inmates for the purpose obtaining treatment prior to their parole
eligibility date, and prioritizes treatment on a deeply flawed and antiquated system.” (Id.)
Sex offenders are prioritized for treatment based on a system called the “Global
Referral List”, which Plaintiffs claim is “sham.” They argue that the Global Referral List is
operated contrary to Colo. Admin Reg. § 700-19 (“AR 700-19”) and that offenders are
instead prioritized based on “convenience of CDOC staff and cost savings for the
CDOC.” (Id. at 9.)
Mr. Lerner was convicted and sentenced on or about September 25, 2003 to an
indeterminate sentence of 22 years to life under the 1998 Act. (Id. at 10.) He alleges
1 The following allegations are taken from Plaintiffs’ Amended Complaint (Dkt.
#8) and all non-conclusory allegations are presumed true for the purposes of the
motions to dismiss. All citations to docketed materials are to the page number in the
CM/ECF header, which sometimes differs from a document’s internal pagination.
2 Mr. Lerner has since been moved to the Denver Reception and Diagnostic
Center (“DRDC”). (Dkt. #34.)
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that he was processed through the DRDC and assigned to the Colorado Territorial
Correctional Facility, but then reassigned and transferred to other facilities based on
available bed space and security classification. He argues that his transfers failed to
account for his treatment needs and that he would be denied access to the SOTMP by
virtue of his housing facilities. Further, Mr. Lerner explains that he had no notice that the
SOTMP was unavailable at these facilities and no opportunity to be heard concerning
his assignment to such facilities. (Id.)
On December 24, 2021, while housed at FCF, Mr. Lerner filed a Step I grievance
requesting that ability to participate in the SOTMP. (Id.) The response indicated that
“based upon the current regulation, your PED3 appears to be influencing factors for your
treatment prioritization and placement. Consequently, your status appears appropriate.”
(Id.)
Mr. Lerner then filed a Step II grievance requesting to participate in the SOTMP
on January 11, 2022. The response to this grievance denied this request and indicated
that Mr. Lerner was on the Global Referral List with his prioritization appropriately based
on AR 700-19. Mr. Lerner filed a Step III grievance on January 21, 2022, again
requesting to participate in the SOTMP. (Id. at 11.) This request was also denied and
indicated “there is a priority of treatment of offenders and that prioritization is articulated
in AR 700-19.” (Id.) Mr. Lerner has sent follow up communications to Defendants
Williams, Brodeur, and Hart requesting to participate in the SOTMP, but had not
received a response by the time of filing.
3 The Court understands PED to mean parole eligibility date. (See Dkt. #8 at 12.)
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Mr. Aigner has similarly been unable to begin the SOTMP program. On or about
November 12, 2019, Mr. Aigner was sentenced to an indeterminate sentence of six
years to life under the 1998 Act. (Id.) Mr. Aigner was also processed through the DRDC.
He was then transferred to Crowley Correctional Facility, which is privately operated by
CoreCivic. (Id.) Like Mr. Lerner, Mr. Aigner alleges that his housing has been based on
available bed space and security classification and has failed to account for potential
participation in the SOTMP program.
Mr. Aigner alleges that CDOC officials, including Defendant Marquez, “knew that
the SOTMP was not offered and that Mr. Aigner would be denied timely access to the
SOTMP by virtue of his housing assignment, even with the knowledge that Mr. Aigner
met all of the criteria pursuant to AR 700-19 for placement in the SOTMP.” (Id.) Mr.
Aigner, like Mr. Lerner had no knowledge that the SOTMP would not be offered at his
facility and did not have an opportunity to seek review of his assignment.
Mr. Aigner was then transferred to FCF and, though at the time of filing he had
been housed there for two years and four months, he had not been given the
opportunity to participate in the SOTMP. (Id.) He argues that he was eligible for parole
consideration on January 23, 2020, and should have been assigned to the SOTMP
pursuant to AR 700-19. (Id. at 12.)
Mr. Aigner has made several attempts to contact the SOTMP treatment team to
request treatment. He received a response on Mach 24, 2022, indicating that he was on
the Global Referral List to be placed in the Track I group but noting that “[d]ue to the
nature of the [Global Referral List] (it changes as people are admitted to and released
from CDOC), it is difficult to give you an exact number on the list.” (Id.)
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On March 24, 2022, Mr. Aigner filed a Step I grievance requesting to participate
in the SOTMP program but, at the time of filing, had not received a response. (Id.)
Both Plaintiffs allege that they have met and continue to meet treatment
participation requirements for the SOTMP, and that it is “clinically appropriate” for them
to enter the program. Despite this, neither has received “notice, an opportunity to be
heard, or meaningful periodic review” regarding Defendants refusal to place them in the
SOTMP or to place them in housing units that do not provide the SOTMP.
Mr. Lerner and Mr. Aigner have both been denied parole three times. For both
Plaintiffs, the Colorado Parole Board only found one shortcoming relative to their
respective “readiness for release”: “Inadequate treatment participation/progress,” which
refers to participation in the SOTMP. (Dkt. #7.)
Because the Global Referral List is flawed and Defendants refuse to transfer
inmates to housing facilities for the purpose of participating in the SOTMP, Plaintiffs
argue that they will be imprisoned indefinitely despite maintaining exemplary disciplinary
records and meeting all criteria to participate in the required sex offender treatment. (Id.
at 6, 13.) Based on these allegations, Plaintiffs allege that Defendants have violated
their Fourteenth Amendment rights to procedural and substantive due process. They
request that the Court declare that Plaintiffs have a cognizable liberty interest in timely
access to sex offender treatment under the 1998 Act and enter an injunction requiring
Defendants to immediately participate in the SOTMP treatment.
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LEGAL STANDARD
I. Pro Se Plaintiffs
Plaintiffs proceed pro se. The Court, therefore, “review[s their] pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
II. Failure to State a Claim Upon Which Relief Can be Granted
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one that “allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts must accept well-pled
allegations as true, purely conclusory statements are not entitled to this presumption. Id.
at 678, 681. So long as the plaintiff pleads sufficient factual allegations such that the
right to relief crosses “the line from conceivable to plausible,” he has met the threshold
pleading standard. Twombly, 550 U.S. at 556, 570.
ANALYSIS
I. Plaintiffs have plausibly alleged a claim for violation of the Due Process
Clause of the Fourteenth Amendment.
Plaintiffs allege that Defendants have denied them due process by depriving
them, individually and collectively, of the opportunity to participate in sex offender
treatment without notice, without an opportunity to contest the deprivation of treatment,
and without meaningful periodic review of their deprivation of treatment. (Dkt. #8 at 14.)
The crux of Plaintiffs’ argument is that inmates convicted of a sex offense have a liberty
interest in being placed into the SOTMP so that they can be released on parole when
eligible. And, by failing to provide timely access to treatment by mismanaging the Global
Referral List and refusing to transfer inmates eligible to participate in the SOTMP,
Defendants are unconstitutionally infringing on that interest in violation of the Due
Process Clause of the Fourteenth Amendment.
The Due Process Clause states, “No State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To allege
a violation of procedural due process, a plaintiff must establish (1) a deprivation of an
interest in life, liberty, or property, and (2) the procedures followed by the government in
depriving plaintiff of that interest did not comport with due process of law. See Elliott v.
Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012); see also Templeman v. Gunter, 16
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F.3d 367, 369 (10th Cir. 1994) (“The Due Process Clause guarantees due process only
when a person is to be deprived of life, liberty, or property.”).
Defendants argue that dismissal of the Due Process claim is appropriate at this
stage because Plaintiffs have no cognizable liberty interest of which they are being
deprived.
The Court disagrees. “A protected interest in liberty or property may have its
source in either federal or state law.” Id. Finding a deprivation of such interest in the
prison context is “particularly daunting.” Chambers v. Colo. Dep’t of Corr., 205 F.3d
1237, 1242 (10th Cir. 2000) (quotation omitted). “However, although an inmate’s rights
may be diminished by the needs and exigencies of the institutional environment, a
prisoner is not wholly stripped of constitutional protections when he is imprisoned for
crime.” Id. (quotation omitted.) Put differently, prisoners retain some rights under the
Due Process Clause, but such rights are “subject to restrictions imposed by the nature
of the regime to which they have lawfully been committed.” Beebe v. Heil, 333 F. Supp.
2d 1011, 1016–17 (D. Colo. 2014) (citing Wolff v. McDonnell, 418 U.S. 539, 55 (1974)).
Plaintiffs concede that they do not allege a deprivation of a federally created
liberty interest. (Dkt. #29 at 4.) Thus, “[a]ny rights, if they exist, are dependent [the
Court’s] finding that state law has created in plaintiff[ ] an interest substantial enough to
rise to the level of a ‘liberty interest’ protected by the federal constitution.” Montero v.
Meyer, 13 F.3d 1444, 1446 (10th Cir. 1994). The Court must therefore determine
whether a state statute has created a liberty interest protected by due process. See
Sandlin v. Conner, 515 U.S. 472, 483–84 (1995).
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In the prison context, due process interests are violated only when prison
conditions impose an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 484. Additionally, a “‘major change’ in a prisoner’s
conditions of confinement may amount to a ‘grievous loss’ to a prisoner” and may
constitute a constitutionally cognizable deprivation.” Beebe, 333 F. Supp. 2d at 1016–17
(D. Colo. 2014) (citing Wolff, 418 U.S. at 572 n.19, and Vitek v. Jones, 445 U.S. 480,
492 (1980)).
Through the 1998 Act, Colorado has created a scheme in which a sex offender is
required to undergo treatment and the CDOC lacks discretion to withhold treatment. As
Judge Daniel explained in Beebe, the 1998 Act,
does not merely suggest that a prisoner who wants to seek parole might
enhance his chances of being granted early release if he participates in a
sex offender treatment program. To the contrary, the Act states, “Each sex
offender sentenced pursuant to this section shall be required as part of the
sentence to undergo treatment to the extent appropriate pursuant to section
16–11.7–105 . . . .” Colo. Rev. Stat. § 18–1.3.1004(3) (emphasis added).
While the statute does vest some degree of discretion in the Colorado
Department of Corrections, that discretion is not as to whether a sex
offender should receive treatment; rather, it is as to what kind of treatment
is “appropriate” for the offender. Id., Colo. Rev. Stat. § 16–11.7–105
(requiring provision of appropriate treatment based upon evaluation of
offender, recommendation of department of corrections, and other factors).
In the case at hand, Plaintiff’s claim of a liberty interest is predicated on the
mandatory language of the statute which requires the state to provide
convicted sex offenders with treatment during their imprisonment . . . . As
in Leamer, under Colorado’s statutory scheme, “confinement and treatment
are inextricably linked.” Leamer, 288 F.3d at 544. “Neither good behavior,
parole policies, or other credits can affect the term of his sentence. Only
successful therapy can shorten [the prisoner’s] incarceration. Therapy is
thus an inherent and integral element of the scheme, and its deprivation is
clearly a grievous loss not emanating from the sentence.” Id.
Id. at 1016.
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Given the mandatory nature of sex offender treatment under the 1998 Act, the
“withholding of treatment . . . would work 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 parole.” Id. at 1017 (brackets in original) (internal citation omitted). Judge
Daniel noted that “such a change would, without doubt, have a serious impact on a
prisoner’s morale, outlook, hope for the future, and motivation to pursue rehabilitation,”
so deprivation of treatment undoubtedly amounts to “grievous loss to an inmate.” Id.
Unlike the present case, Beebe involved a plaintiff who had begun the SOTMP,
but was then terminated from the program. This Court finds this a distinction without a
difference, at least with respect to whether a liberty interest in access to the SOTMP
exists. As other courts in this district have held, the reasoning in Beebe is equally
applicable whether the deprivation occurs as the result of termination from the program
or being denied access to the program altogether. See Tillery v. Raemisch, No. 16-cv-
0282-WJM-STV, 2018 WL 4777411, at *7 (D. Colo. Oct. 3, 2018) (finding, at the
summary judgment stage, that plaintiff had a liberty interest in access to the SOTMP)
(hereinafter Tillery III4 ); Conkleton v. Zavaras, No. 08-cv-02612-WYD-MEH, 2010 WL
6089079, at *4 (D. Colo. Oct. 6, 2010), report and recommendation adopted, No. 08-cv-
02612-WYD-MEH, 2011 WL 839282 (D. Colo. Mar. 7, 2011) (finding that the plaintiff
4 In this order, the Court references other relevant orders from Tillery. For clarity,
the Court will refer to Judge Martinez’s Order Denying Cross Motions for Summary
Judgment as Tillery III because it is the third proceeding chronologically that this Court
relies on. Further the Court will refer to Judge Varholak’s November 7, 2016
Recommendation granting in part and denying in part the defendants motion to dismiss
as Tillery I and the Order Overruling Plaintiff’s Objection, Adopting in Part and Rejecting
in Part the November 7, 2016 Recommendation of the United States Magistrate Judge
Granting in Part and Denying in Part Defendant’s Motion to Dismiss as Tillery II.
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had a liberty interest in access to the SOTMP, but ultimately finding no denial of access
occurred).
Defendants do not argue that Plaintiffs do not have any liberty interest in
treatment, but instead claim that Plaintiffs do not have an interest in “unfettered” and
“immediate” access to the SOTMP. (Dkt. #21 at 5.) Defendants argue that, because
Plaintiffs have no liberty interest in parole, they have no liberty interest in “unfettered
access to one of the prerequisites for parole.” (Dkt. #21 at 6.) Judge Daniel rejected a
similar argument in Beebe. See 333 F. Supp. 2d at 1013. (“While it is true that Plaintiff
has no liberty interest in parole under Colorado’s indeterminate sentencing scheme
since the scheme vests full discretion to grant parole in the parole board, [Defendants]
improperly leap[ ] to the conclusion that this means that Plaintiff has no liberty interest in
participating in the treatment program that could lead to his parole.”).
Rather than couching this discussion as whether a liberty interest in “unfettered
and immediate access” exists, which requires more narrowly construing the liberty
interest at stake, the Court finds it more appropriate to analyze whether a deprivation of
something in which Plaintiffs undeniably have a liberty interest—access to the
SOTMP—has occurred without due process. 5 See Tillery III, 2018 WL 4777411, at *7
(finding that inmate had a liberty interest in “being able to access treatment during his
incarceration within a reasonable period of time” and then considering whether the
procedures followed by CDOC actually deprived Plaintiff of treatment). But see Firth v.
Shoemaker, 496 F. App’x 778, 790 (10th Cir. 2012) (unreported) (finding that plaintiff
5 Moreover, the Court is not convinced that Plaintiffs seek “immediate and
unfettered” to the SOTMP. Instead, they seek reasonable or timely access, which the
law seems to require.
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did not have a liberty interest in making “sufficient” progress or completing the SOTMP
by the time inmate served minimum sentence).
B. 	Plaintiffs have plausibly alleged a deprivation of their liberty interest
in violation of the Due Process Clause.
That Plaintiffs have a liberty interest in the mandatory sex offender treatment
under the 1998 Act does not end the inquiry. The Court next considers whether
Plaintiffs have plausibly alleged that the procedures followed by the government in
depriving Plaintiffs of that interest fail to comport with due process of law.
To the extent Plaintiffs claim that they have suffered a deprivation solely because
they have not had access to the SOTMP prior to their parole eligibility date, such claim
fails. Indeed, nothing in the regulation or statute impose such a requirement. See Firth,
496 F. App’x at 789 (upholding district court’s finding that AR 700-19 “undercut[s] any
contention that state law requires CDOC to provide sex offenders an ability to complete
the SOTMP before the end of their minimum sentences”). Instead, AR 700-19 provides:
D. Treatment Participation Requirements and Prioritization: Sex offender
treatment is cognitive-behavioral based therapy and adheres to the risk,
needs, responsivity mode of treatment. The SOTMP has established
participation requirements and offenders who are recommended for sex
offense 	specific 	treatment 	will 	be 	assessed 	by 	the 	SOTMP 	team 	to
determine if they currently meet treatment participation requirements. This
information may be used to assist in facility placement decisions.
1. Offenders with judicial determinations of a sex crime that
are within four years of their parole eligibility date are prioritized for
sex offense specific treatment based upon, but not limited to, the
following:
a. Parole eligibility date;
b. Risk for sexual recidivism;
c. Prior SOTMP treatment opportunities;
d. Institutional behavior.
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Thus, at most, the regulation provides that sex offenders will be prioritized for
treatment based on certain factors. The CDOC developed the Global Referral List to
rank inmates eligible for SOTMP based on the criteria set out in AR 700-19 and
determine which inmates are eligible to participate in the next treatment group. Tillery
III, 2018 WL 4777411 at *3. Though it would be ideal for all offenders to complete the
program prior to their parole eligibility date, the Court acknowledges that the practical
limitations, including limited capacity of the program and budget constraints, often
prevents such access.
However, this does not mean that unreasonable or excessive delay or denial of
initial access to the SOTMP can never constitute an unlawful deprivation. Tillery
demonstrates that there may be instances in which denying access to the SOTMP does
not comport with due process, such as refusing to transfer inmates eligible for the
SOTMP to a facility that offers the program. Of the treatment prioritization factors listed
in AR 700-19, an inmate’s present housing assignment is not one.
In Tillery II, Judge William J. Martinez upheld Magistrate Judge Scott T.
Varholak’s recommendation allowing an inmate’s procedural due process claim to
proceed where the plaintiff alleged that there was, in effect, no waitlist because the
CDOC would not transfer prisoners to other facilities for the purpose of treatment. Thus,
as a result of the plaintiff’s arbitrary assignment to a facility that did not offer the
SOTMP, the plaintiff would never be eligible for parole. Tillery I, No. 16-cv-00282-WJM-
STV, 2016 WL 11184844, at *7 (D. Colo. Nov. 7, 2016) (recommending denying the
motion to dismiss procedural due process claim where plaintiff alleged that, as a result
of housing assignment, he would be denied access to SOTMP), report and
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recommendation adopted in part, rejected in part, Tillery II, No. 16-cv-0282-WJM-STV,
2017 WL 217816 (D. Colo. Jan. 18, 2017).
Plaintiffs’ allegations in this case mirror those asserted in Tillery. They argue that
they have been arbitrarily assigned to facilities that do not offer the SOTMP and
Defendants refuse to transfer them to a facility that provides the SOTMP, so they will be
denied access to the program indefinitely for reasons unrelated to the factors set out in
AR § 700-19. Further, Plaintiffs argue that they have no means by which to seek review
of their housing assignment and its impact on their ability to obtain treatment. See
Tillery I, 2016 WL 11184844 at *7 (noting the plaintiff’s allegation that there is effectively
no waitlist because the CDOC “will not transfer prisoners to other facilities for the
purpose of obtaining treatment” and thus that Plaintiff will never receive treatment and
never be eligible for parole) (internal citations and quotations omitted).
The Court finds the reasoning in the relevant Tillery rulings persuasive.
Accordingly, Plaintiffs here have plausibly alleged a violation of their rights to procedural
due process under the Fourteenth Amendment.
II. Plaintiffs’ claim for violation of substantive due process.
“Substantive due process bars certain government actions regardless of the
fairness of the procedures used to implement them.” Brown v. Montoya, 662 F.3d 1152,
1172 (10th Cir. 2011) (quotation omitted). A substantive due process claim is “founded
upon deeply rooted notions of fundamental personal interests derived from the
Constitution.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998).
The standard for judging a substantive due process claim is whether the
challenged governmental action would “shock the conscience of federal judges.”
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Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 528 (10th Cir. 1998). To satisfy this
standard, “a plaintiff must do more than show that the government actor intentionally or
recklessly caused injury to the plaintiff by abusing or misusing governmental power.” Id.
Instead, a plaintiff “must demonstrate a degree of outrageousness and a magnitude of
potential or actual harm that is truly conscience shocking.” Id. “A substantive due
process violation must be something more than an ordinary tort to be actionable under
§ 1983.” Abeyta By and Through Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77
F.3d 1253, 1257 (10th Cir. 1996). Thus, in the corrections context, “[p]risoners are
entitled to substantive due process; but substantive-due-process rights available to free
persons may be denied to prisoners if the denial bears a rational relation to legitimate
penological interests.” Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011).
Defendants argue that Plaintiffs have failed to allege a substantive due process
violation because Colorado inmates do not have a substantive due process right to sex
offender treatment. As explained above, however, Plaintiffs’ have sufficiently alleged a
liberty interest in access to the SOTMP. The Court finds this creates a substantive due
process right.
Defendants further argue “[t]here can be little dispute that the CDOC policy to
establish a SOMTP priority list and methodology is reasonably related to a legitimate
penological interest—i.e., providing that treatment in light of a finite set of resources to
do so.” (Dkt. #21 at 11.) But, like the plaintiff in Tillery, Plaintiffs are not challenging the
adoption of AR 700-19 or the factors it sets forth for prioritizing the waitlist. Instead,
Plaintiffs allege that the CDOC is operating the Global Referral List in a manner
“contrary to the letter and spirit of the 1998 Act and AR 700-19.” (Dkt. #8 at 9.) They
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claim that the Global Referral List is not being implemented in a manner consistent with
AR 700-19 and, as a result, the CDOC fails to provide any meaningful process by which
offenders will be prioritized for treatment. Plaintiffs also allege that the CDOC “refuses
to transfer inmates for the purpose of obtaining treatment prior to their parole eligibility
date.” (Dkt. #8 at 6.) Broadly construed, the allegations suggest that an inmate’s
housing can negatively and improperly impact his placement on the Global Referral List
or otherwise prevent his placement in the SOTMP. Plaintiffs further allege that
Defendants are aware of the issue and have deliberately failed to remedy it.
Like Judge Varholak, at this early stage, this Court “finds these allegations ‘that
no program or policy was in place to provide due process to Plaintiff before he was
arbitrarily deprived of his right to treatment in the program could satisfy the “shocks the
conscience” test.’” Tillery I, 2016 WL 11184844, at *7 (quoting Beebe, 333 F. Supp. 2d
at 1018).
CONCLUSION
The Court acknowledges that the CDOC faces budget constraints and does not
have the ability or capacity to immediately provide rehabilitative treatment to all inmates
requiring sex offender treatment. Nothing in this recommendation should be construed
as denying that reality. Still, at this stage in the litigation, budget constraints cannot
defeat claims of procedural or substantive due process. Discovery may ultimately reveal
that the Global Referral List functions properly, given limited State budget constraints,
and inmates are, in fact, transferred when they reach or near the top of the Global
Referral List. At this juncture, however, the Court finds Plaintiffs have pled their claims
within the confines of Tillery which is persuasive in its reasoning.
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Therefore, it is hereby RECOMMENDED that Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint Pursuant to 12(b)(6) (Dkt. #21) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated: 	February 3, 2023
Denver, Colorado 	N. Reid. Neureiter
United States Magistrate Judge
Case No. 1:22-cv-00888-SKC-NRN Document 35 filed 02/03/23 USDC Colorado
pg 17 of 17